R v Day [2000] QCA 313

Director of Public Prosecutions (Queensland) for the respondent

[1] PINCUS JA: I have read and, except as to one issue, agree generally with the reasons of Thomas JA.

[2] As Thomas JA points out, the Crown prosecutor obtained leave to cross-examine the accused about the offences in his criminal history; the judge excepted one offence. Permission was obtained under s 15(2) of the Evidence Act (1977); had that permission not been obtained, it would have been unlawful for the prosecutor to ask "any question tending to show that the [accused] has committed or been convicted of or been charged with any offence other than that with which the [accused] is there charged, or is of bad character". In Matusevich [1977] HCA 30; (1977) 137 CLR 633, a case decided under the corresponding Victorian provision, it was emphasised that in the absence of permission evidence of the kind referred to in the statute is inadmissible; in that case it was held that a breach of the statute in asking the prohibited questions without permission brought about a miscarriage of justice.

[3] The general prohibition of cross-examination of the accused on previous offences or "bad character" must be taken seriously, as Matusevich illustrates. Here, as it appears to me, that prohibition was infringed. The application which was made related to the appellant's criminal history; the judge was given a copy of the history and it was the subject of some discussion between the judge and counsel, at the conclusion of which the Crown's application was allowed. In my opinion, some of the cross-examination related to character in general, apart from the criminal history. I do not accept that permission to cross-examine on criminal offences recorded in the accused's history is permission to cross-examine as to character generally. A clear example is at p 489 where the appellant is invited to and does accept that he is "by nature a lying, conniving and deceitful person". It was put that he is a "jail heavy ... a standover man ... and a lout". All of these suggestions appear to me to relate to the appellant's general character or disposition: para 8-178 of Archbold (1997); Stirland [1944] AC 315 at 324-325. I do not think questions of this kind should, in general, be allowed. At p 494 it was put that the appellant and another prisoner engaged in a certain sexual activity and that question, which tended to make the appellant seem a villain in the jury's eyes, again went beyond the permission granted.

[4] I would interpolate that there is reason for doubt as to whether the conduct last mentioned could, even with permission, be put, as it was not suggested to involve the commission of an offence; it is unclear whether cross-examination as to character may take the form of asking about any disgraceful specific conduct whatever. The meaning of "character" in a corresponding New Zealand provision is usefully discussed in Ravindra [1997] 3 NZLR 242. I am respectfully of opinion that, because the cross-examination went beyond the quite specific permission granted, there was a breach of the statute.

[5] The second point is that in my opinion justice did not miscarry, either because of the error identified in para [37] of the reasons of Thomas JA or because of the matters discussed above. As to the latter, the cross-examination done within the permission granted by the judge must have been enough to convince the jury that the appellant is unworthy of anyone's trust; the questions which were in my opinion inadmissible could have made no substantial difference to the jury opinion on that point.

[7] DAVIES JA: I have had the advantage of reading the reasons for judgment of Pincus JA and Thomas JA. Like Pincus JA I agree generally with the reasons of Thomas JA and that the appeal must be dismissed.

[8] I do not find it necessary to decide whether questions asked by the Crown prosecutor, in consequence of permission granted by the learned trial judge pursuant to s 15 of the Evidence Act, went beyond the permission granted. That is because, even if they did, no miscarriage resulted. That is not to be taken as an approval of either the cross-examination or the address of the learned Crown prosecutor. Parts of each, in my view, were close to the margin of proper conduct. But because neither resulted in a miscarriage I do not think it necessary to discuss them further.

[9] Nor, in my opinion, did any aspect of his Honour's direction give rise to a miscarriage.

[10] THOMAS JA: The appellant and two fellow prisoners were charged with the murder of another prisoner, Scott Topping, at Woodford Correctional Centre. The appellant, Day, was convicted of murder. The appellant's co-accused, Clark and McLaren, were acquitted.

[11] The Crown case was that the appellant and his two co-accused entered Scott Topping's cell on the morning of 12 September 1997. Paper was placed over the cell window. A cord was pulled from the television set and was used to garrotte Mr Topping. He died in the presence of his attackers who then cleaned up the area, placed the body on the bed and covered it with a doona. The men then left the cell and closed it.

[12] The appellant gave evidence and claimed to have been the sole attacker, saying that Clark and McLaren only came into the cell after he had attacked the deceased and after he had placed the body back in the bed.

[13] The following is a short summary of the appellant's own evidence-in-chief:

About two days before the killing the appellant had punched Topping in the head with a clenched fist following what he described as a "bit of an argument". The following day the appellant was told by a fellow prisoner (Bulmer) that Topping was available for sexual favours. On the day before the killing the appellant "got a head job off him". Later that afternoon at the dinner table Topping had talked back when the appellant had started "a bit of a gig at him", upon which the appellant told him to shut his mouth. The following morning, after breakfast, the appellant went to Topping's cell and told him that he wanted to talk about "the friction". Upon being admitted the appellant shut the door behind him. When Topping went to his toilet the appellant covered the window with paper. Upon returning Topping walked to his cupboard to roll a smoke. The appellant grabbed a cord from the television set and went behind Topping with it saying "If you want to fuck around, you'd better be prepared to go all the way because I will, and I won't stop". He put the cord over the back of Topping's head, pulled it tight and pulled him back. According to the appellant Topping "started reaching up and throwing his elbows up and reaching back grabbing at the cord and when I said that I virtually loosened it off and he just dropped ... I stood around for a couple of minutes, looking at him seeing if he was going to come back around. When he didn't I twisted the cord around his neck and as I was tying the knot it snapped ... I virtually put him back in his bed because he was half on his bed and half off his bed ... [I] covered him over with the doona and then cleaned up a bit of mess where he dropped his tobacco and that". At this point he said that his companions Clark and McLaren arrived. The part of the cord that had broken from the knotted cord that remained around the deceased's neck was taken by the appellant back to his cell where he wiped it clean and threw it into a garbage tin. He said he had tied the cord around Topping's neck to cover it up "and make it look like suicide".

[14] The appellant's cross-examination included the following:

"So, whilst you have got this thing around his neck, what you are telling him is, "Are you prepared to be killed?"?--Yeah, I was asking him if he was willing to go all the way with me if he was going to do it.

You have got the ligature around his neck, with the man in front of you gasping and choking and you were prepared to kill him?--Yes.

And asking him to give some indication - "Is that all right?"--No.

So, he's pulling and gasping, is he?--Yeah, throwing his elbows around.

Frothing at the mouth?--I wasn't looking at his face."

"If you wanted to give the appearance of suicide and prepared to take the risk of doing it, why wouldn't you do that; hang him up in the shower?--Because I didn't think of it at that time, did I."

[15] With reference to tying the cord the cross-examination included:

The force you must have used to break it would be extraordinary, wouldn't it?--Of course.

To break one of these things requires, in a jerk, a massive use of force?--Yeah.

So, you have taken this cord and put it around his neck a couple of times?--Yeah.

You have knotted it off in the front?--While I was tying that last little bit you just tied there - while I was pulling that tight."

"Was Topping on his bed or standing up while you were doing this?--While I was tying it he was on his bed.

You put your foot up on the pillow to do this?--His chest.

You put some pressure into it?--Yeah, I put my knee into his chest."

[16] The cause of death, according to the evidence of Dr Ansford, a forensic pathologist, was compression of the neck leading to partial asphyxia followed by vagal inhibition causing his heart to stop. Asphyxia was described as cutting off the air supply to the lungs; vagal inhibition is caused by pressure on the vagas nerve endings under the corners of the jaw which send messages to the heart and which may cause the heart to stop (cardiac arrest). In simple language death was caused by a partial cutting off of the oxygen supply followed by vagal inhibition followed by the stopping of the heart.

[17] There are two grounds of appeal. Firstly, it is alleged that the cross-examination and address of the learned Crown prosecutor were inflammatory and that they occasioned a miscarriage of justice. Secondly, it is claimed that the learned trial judge failed to direct the jury properly concerning previous offences committed by the appellant.

[18] In relation to the first ground, the preliminary submission was made that the allegedly inflammatory remarks of the Crown prosecutor were likely to have occasioned a miscarriage of justice because this was a "finely balanced case". The basis of that contention was that there was a serious issue concerning whether the Crown had negatived accident.

[19] In my view the learned trial judge erred in favour of the appellant in permitting the issue of accident to go to the jury. On any view of the evidence the appellant's garrotting and application of a ligature were willed acts and it is not suggested that the first limb of s 23 could apply. His Honour gave what is sometimes called the Taiters direction[1] in relation to the second limb of s 23, that is to say on the issue whether the death was an event which occurred by accident. It was held in Taiters that an event could not qualify as an accident under the section where there was a real risk of its occurrence which an ordinary person in the circumstances would have been conscious of. It is of course only necessary to give such directions when the issue is properly raised on the evidence. There must be at least some evidence from which a jury might reasonably conclude that it was reasonably possible that the result could not have been foreseen by an ordinary person in the position of the accused[2] . In the present case any ordinary person in the position of the appellant must have been reasonably able to foresee death as a possible outcome from such violent activity. The evidence relied on by counsel for the appellant as raising the issue is essentially the appellant's evidence-in-chief which has been referred to in paragraph [4] above. At best for the appellant that evidence may be interpreted as implying that he was not at that time trying to kill Topping. But the circumstances do not approach the area of reasonable non-foreseeability. Indeed, there was no mention by the appellant of any shock or even surprise at the outcome.

[20] It follows that no question of accident arose under s 23 and the appellant received an undue benefit from being given an opportunity of acquittal on that ground. Insofar as absence of intent to kill is concerned, that issue was separately and adequately presented to the jury and the evidence supporting such an inference was very strong indeed. It would therefore be erroneous to approach the grounds which will now be considered on the basis that this was a finely balanced case. The case against the appellant was a very strong one.

[21] Upon application by the prosecution leave was granted under s 15(2)(c) of the Evidence Act 1977 to ask questions of the appellant to show that he had been convicted of other offences. The offences in question consisted of numerous offences of dishonesty and other offences of violence and of threats of violence. His previous conviction of murder was however not adduced. No appeal is brought against the ruling that permitted such cross-examination. Indeed defence counsel had already adduced the relevant criminal histories of Crown witnesses, including Mr Bulmer to whom it had been put that he had convictions for offences of dishonesty and of violence, that he was a standover man and that he had a connection with drug matters.

[22] Early in cross-examination the learned Crown prosecutor put to the appellant that at the earlier trial he was willing for his counsel to put "a totally false proposition to the witnesses". No objection could be raised on this score. Indeed, the appellant agreed with the proposition and proceeded to maintain that his present account as correct. The Crown prosecutor asked "You have suddenly decided out of some inner depth of morality that you have just got to come and tell the truth?". The appellant replied "I have decided after a certain person got up and told his side of the story that I should tell mine". His final explanation for his earlier misleading conduct was "Well, at that stage I didn't have a certain co-accused jumping in the box telling his side, did I?". Notwithstanding robust language from the Crown prosecutor including the suggestion that a certain statement was "codswallop" and that he had "backflipped" there was in my view nothing improper in the conduct or questioning of the learned Crown prosecutor in that particular area.

[23] A little later, after the appellant's concession that he had lied to deceive the previous jury, the Crown prosecutor asked "Why should this jury for a moment pause to think, Mr Day, that you are any better person now that you were in October 1999?" and "Why should they not look at you and see you as a lying, conniving, deceitful person?". These were comments. A prosecutor may have been entitled to make them in an address, but they were not proper questions. They were also insulting, although it must be acknowledged that discreditable adjectives were justifiable. Indeed, to the next question, "Well, would you say and accept that you are by nature a lying, conniving and a deceitful person?", the appellant answered "Up to a point, yeah".

[24] In dealing with the 10 year period when the appellant had multiple convictions for breaking, entering and stealing, the Crown prosecutor asked whether the appellant thought anything about the rights of private people or whether he was depriving elderly people of their last meal. These questions, according to the submission of counsel for the appellant to this court, were unduly emotional and unfair. I do not think that this was in the least unfair. The appellant actually agreed that he had "not given a hoot for anyone".

[25] After adducing a number of convictions of violence, the Crown prosecutor put to the appellant that he was "somebody who was not to be messed with" to which he agreed "up to a point". To the proposition "You are a man in gaol to be respected?", he replied "You could look at it like that". He however denied being a "standover man". The questioning then turned to his relationship with Scott Topping. To the proposition that it was a relationship based on violence his answer was "It had its moments". He denied involvement in the violent humiliation of Topping some days before his death in which he had been tied to a dip bar, but admitted that he was "around" when Topping was "dusted". The Crown prosecutor suggested that the appellant was in effect overpowering a timid person in order to make him his sex slave. This was denied. According to the appellant there was only one incident and it was consensual. The line of questioning in this part of the cross-examination, suggesting prison bullying was in my view appropriate. It directly concerned the relationship between the men leading up to the final attack on Scott Topping. It is hardly surprising that the appellant did not accept all the suggestions that were made, but there was nothing wrong in the attempt by the cross-examiner to put such a scene to the witness.

[26] Among other discreditable activity put to the appellant by the Crown prosecutor was the allegation that he and McLaren had had oral sex in the prison van when going back to prison the previous Friday. This was denied. However if credible instructions existed that such activity had taken place, it was within the scope of proper cross-examination to put it to the witness. Of course there comes a time when the putting of such collateral misconduct may become mischievous and improper[3] but in my view that position was not reached here.

[27] The cross-examination then proceeded to examine what had happened in Topping's cell and the appellant's state of mind at the time. It produced some rather startling incriminatory admissions some of which have been set out in paragraphs [5] and [6] above.

[28] Considerable care is necessary to ensure that jury verdicts are not based upon prejudice, sympathy, fear or irrelevant emotion. Numerous statements may be found in the cases about the undesirability of inflammatory or emotive conduct by counsel and in particular by Crown prosecutors[4]. However it would be absurd to hold that advocates, whether for Crown or defence, are prohibited from appealing to the emotions or that they must perform their work without any passion, and without reference to human emotion. Where there is a real risk that counsel's conduct is calculated to appeal to prejudice or to distract the jury from the true issues, the court must be quick to intervene in the interests of a fair trial[5]. This has been noted to be particularly necessary in child sexual abuse cases[6]. At the same time, criminal trials deal with human situations and it is the duty of counsel to elicit answers which will give the jury appropriate insights into the conduct which will facilitate the drawing of inferences on issues such as motive, intention, knowledge and state of mind of various actors. It is counsel's duty to do so, and to try to do so persuasively. The statements made in the above cases condemning inflammatory and emotive conduct by counsel are not in my view intended to deny counsel their proper role in these respects.

"The last thing we would wish to do would be to say anything which may be thought to curtail this freedom of speech, which public policy demands."[7]

In making that statement the members of the High Court recognised on the one hand cases where it is "the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person and to use strong terms ..." and on the other hand the need for counsel not to abuse the privilege. In the end the question on appeal is not whether counsel's conduct has been unseemly but whether it has been prejudicial to a fair trial.

[29] It is possible in this case (as in many others) to be critical of some questions that were asked by the Crown prosecutor. His cross-examination was on the whole within reasonable limits. It should not be overlooked that he was dealing with an aggressive arrogant witness. Counsel can hardly be criticised for stimulating him into revealing something of his true character in the witness box. Overall the learned Crown prosecutor's cross-examination was well structured, relevant, commendably concise and effective. Whilst criticisms of some questions are justifiable it cannot be said that it was unduly inflammatory or that it prejudiced a fair trial.

[30] It was further submitted that the Crown prosecutor's address was intemperate and unduly emotional. I shall mention only the major points relied on. Firstly, it was objected that he mentioned to the jury in the course of his address that at the time of his death Scott Topping was due for release in only four weeks time. That fact was in evidence, and I do not think that a Crown prosecutor's duty is so circumscribed that he may not mention sad details along the way. Objection was also taken to his description of the deceased (who was 19 years old) as "this boy". The objection is, I think, unduly precious.

[31] It was also submitted that the Crown prosecutor's address when responding to what I have earlier indicated as the spurious defence of accident, was unduly emotional in that in the course of describing the appellant with his knee on Scott Topping's chest tying the cord around his neck, he suggested that he "looked at his face and looked in his eyes as Scott Topping saw his death coming". In the cool atmosphere of an appeal court that reconstruction may be described as unduly theatrical. But unless we are to interrupt criminal trials so that counsel may first write out their speeches, closing addresses must remain at least partly driven by adrenalin. Spontaneity is a valuable asset in criminal trials even if it leads to the occasional flourish that would be deleted on more mature reflection. The appellant's counsel does have a point here, but only a minor one.

[32] Finally, objection was taken to the use of the word "sub-moronic" in the context of urging the jury to disregard the defence of accident. His submissions included the following:

"To suggest that the explanation for the tying off of the ligature was an attempt to make his death appear to be a suicide is also an obscene joke ... A suicide with an incomplete cord, of a man in bed with a doona up around his neck. Can you imagine that, you know, seriously, even for somebody who was on the sub-moronic scale?"

This would seem to be a reasonable submission which he was entitled to make. It was made in the wider context of rebutting the defence of accident, in the course of which the subject of the powers of foreseeability of a reasonable person was to the fore. It is also to be noted that experienced counsel acting for the appellant at no stage objected to the cross-examination, and did not apply for discharge of the jury after the Crown prosecutor's address, or asked the learned trial judge to redress any perceived imbalance.

[33] In my view the Crown prosecutor's conduct, in both cross-examination and address does not come close to revealing improper conduct or remarks creating a danger of a miscarriage of justice.

[34] The only objection raised is that his Honour erred in failing to direct the jury as to the proper use they could make of evidence of previous offences committed by the appellant, and in particular offences of violence. Reliance was placed upon a statement by Barwick CJ in Donnini v The Queen[8]:

"... the trial judge, when evidence of prior conviction is properly before the jury for the sole purpose of combating a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they must not use the fact of prior conviction as tending to the guilt of the accused. In my opinion he should tell them quite clearly that the fact of prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with witnesses for the Crown, or as to exculpatory facts or claims which he makes."

[35] In the course of his summing up the learned trial judge stated:

"There is evidence of the fact that Crown witnesses have prior convictions. Those are matters that you should, of course, take into account when you are considering the credibility of those witnesses.

It is obvious, of course, that each of the accused is, at present, serving a sentence and was at the relevant time. You do not draw any inference against an accused person because of that. You do not conclude that because the person was guilty of some wrongdoing in the past he therefore has a propensity to commit criminal acts. You consider the case on its merits on the evidence that has been placed before you in this trial."

Whilst the direction was somewhat terse, there could be no doubt that the warning against relying on propensity was a warning in favour of the accused persons including the appellant. It is true that his Honour did not specifically state that such evidence could only be used to discredit the evidence of the appellant, but it immediately followed a direction that the prior convictions of Crown witnesses should be taken into account in considering their credibility.

[36] I do not think that there was any obligation upon the learned trial judge to draw a distinction between the offences of dishonesty and the offences of violence which had been revealed on the part of the appellant. It may be noted that defence counsel did not seek any redirection to that effect, or indeed any further direction of the kind that is now said to have been necessary. Counsel on appeal did not formulate what should have been said, beyond the need to warn against propensity reasoning. A failure by counsel at trial to request such a direction does not necessarily prevent a clear failure from being an error causing a miscarriage of justice[9], but in the present matter I do not think that the position of the appellant would have been advanced by specific mention of any distinction between the various types of offence of which he had been convicted. The warning against using past wrongdoing to show propensity to commit criminal acts, and the direction to consider the case on its merits and on the evidence was in the circumstances sufficient on that particular aspect.

[37] However some mention should have been made to the effect that the sole use that should be made of the evidence of previous convictions was to reduce the credibility of those particular witnesses. With some hesitation I have concluded that in point of law the omission was an error. This aside, the summing up was impeccable. Having regard to the content of the other directions that were given the omission in my view could not have caused any difference to the result. Any appropriately instructed jury, acting reasonably on the evidence and applying the correct onus and standard of proof would inevitably have convicted the appellant. The proviso in s 668E(1A) of the Code should therefore be applied.

[1] R v Taiters ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333.

[2] R v Van Den Bemd [1995] 1 Qd R 401, 405; R v Bojovic CA 4 of 1999 para 14-18, 8 June 1999.

[3] "[Counsel] does not, in cross-examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys." (Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186, 200).

[4] R v Knuth [1998] QCA 161 CA 64 of 1998 per Lee J; R v Hay and Lindsay [1968] Qd R 459; R v Ciseau CA 470 of 1993 and 155 of 1994, 8 November 1994.

[5] R v M [1991] 2 Qd R 68.

[7] Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186, 200 per Dixon CJ, McTiernan, Fullagar, Menzies and Windyer JJ.

[8] [1972] HCA 71; (1972) 128 CLR 114, 123.

[9] BRS v R [1997] HCA 47; (1997) 191 CLR 275, per Toohey J at 291-295, Gaudron J at 302-303, McHugh J at 310, Kirby J at 319-320 and 326-333.