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[2009] QCA 110
Court of Appeal (Qld)
2009-05-01
Muir JA, Mullins and Douglas JJ, Separate reasons for, judgment of each member of the Court, each concurring as to the order made
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 Markan [2009] QCA 110
PARTIES: R v MARKAN, Peter (appellant)
FILE NO/S: CA No 318 of 2008 / DC No 286 of 2008
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Southport
DELIVERED ON: 1 May 2009
DELIVERED AT: Brisbane
HEARING DATE: 27 March 2009
JUDGES: Muir JA, Mullins and Douglas JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Appeal dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – Tests – Circumstances not involving miscarriage or in which miscarriage not substantial – Improper admission or rejection of evidence – where appellant convicted of one count of grievous bodily harm – where at trial police witness gave evidence of statement made to him by appellant – where evidence of that statement had been ruled inadmissible – where at trial evidence which could have referred to appellant’s prior criminal history was given – where cross-examination on that point closed off speculation by jury – whether admission of the evidence caused prejudice supporting a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – Tests – Circumstances not involving miscarriage or in which miscarriage not substantial – Misdirection and non-direction – Generally – where appellant self-represented at trial – where trial judge intervened in appellant’s cross-examination of police witness – whether intervention prevented appellant from cross-examining witness as to credit – where trial judge gave explanation to appellant about trial procedure – whether trial judge adequately assisted the appellant as to strict proof of photographic evidence of injuries, meaning of the term “grievous” and process by which issue of self-defence could be placed before jury – whether trial judge failed to ensure the appellant received a fair trial – whether separately or in aggregate the grounds of appeal supported a miscarriage of justice / Evidence Act 1977 (Qld), s 21O / Blacktown City Council v Hocking [2008] NSWCA 144, considered / MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, considered / R v Kerbatieh (2005) 155 A Crim R 367; [2005] VSCA 194, considered / R v Sitek [1988] 2 Qd R 284, considered / Schmidt v Schmidt [1969] QWN 3, considered
COUNSEL: T Carmody SC, with D R Wilson, for the appellant / M J Copley SC for the respondent
SOLICITORS: Russo Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MUIR JA: I agree with the reasons of Mullins J and with the order she proposes.
MULLINS J: The appellant was self represented when he was tried in the District Court before a jury on one count of grievous bodily harm. As the complainant was a protected witness for the purpose of s 21O of the Evidence Act 1977, a barrister from Legal Aid Queensland appeared at the trial for the sole purpose of conducting the cross-examination of the complainant on behalf of the appellant. The appellant was found guilty and sentenced to four years’ imprisonment with the date at which he is eligible for parole fixed at 29 October 2010 (after serving two years’ imprisonment). The appellant appeals against his conviction only.
The prosecution case
Both the complainant and the appellant were employed as electrical mechanics at a resort situated on South Stradbroke Island. Their shifts never coincided, except for a period of a couple of hours each Friday. The appellant had been employed for some years, but the complainant had worked there for about six to eight weeks before the incident which occurred on a Friday. The complainant was working at the switchboard for two generators in a shed at an isolated site, when he felt a substantial blow to the back of his head, followed by a further blow to the head. The complainant turned round and saw the appellant holding a baton that was 35 millimetres to 40 millimetres in diameter and longer than a ruler. The appellant hit him in the face with the object. The complainant used the door to the switchboard as a shield from the appellant. The appellant then hit the complainant’s lower leg. The complainant was hit on the left arm as he was holding the door. The complainant pushed the door, in order to leave the shed, and received more blows. The complainant felt excruciating pain in his arm and head. The complainant ran away from the shed, but the appellant followed. The appellant caught up to the complainant and hit him a couple of times on the left shoulder. There were numerous blows from the appellant. Eventually the complainant managed to disarm the appellant, and the appellant picked the baton up, but the attacks stopped. The complainant fled and called 000 and was taken to hospital.
The complainant sustained a commuted fracture to the midshaft of the left ulnar and to the left ulnar styloid. An orthopaedic surgeon operated on the left arm on 24 July 2007 and inserted a plate and screws into the midshaft of the ulnar. There was no specific treatment for the ulnar styroid fracture, apart from placing it in plaster. The treating orthopaedic surgeon expressed the opinion (at Appeal Record (AR) 46-47) that the complainant would have been left with a permanent injury to health and an ongoing disability (both loss of function and pain) in the left arm, had there been no medical treatment. The prosecution also called another doctor who was a staff specialist in emergency medicine at the Gold Coast Hospital who was able to produce the notes made at the hospital in respect of the complainant’s attendance and treatment of his injuries on 13 July 2007.
The defence case
Grounds of appeal
(a)the admission of evidence of a statement made by the appellant to the investigating police officer which had been previously ruled inadmissible by the trial judge;
(b)the admission of evidence that reasonably implied the appellant had a prior criminal history or had committed other uncharged criminal offences;
(c)that the appellant was prevented from cross-examining at large Senior Constable Dods on matters relating to credit;
(d) the failure of the trial judge to ensure adequately against trial unfairness by giving the appellant the practical assistance needed to compensate for the disadvantage of self representation.
Admission of evidence that had been ruled inadmissible
“I have no knowledge of this incident … I don’t need a solicitor.”
The electronic recording device that Senior Constable Hutchinson thought was recording the interview failed. As a result, the officer did not make a written record of the conversation until two months after it occurred, when he was preparing his statement. The trial judge excluded from the evidence to be adduced by the prosecution the statement which the officer alleged was made by the appellant to the officer about having no knowledge of the incident, because of the delay by the police officer in reducing it to writing.
When Senior Constable Hutchinson gave evidence-in-chief, he did not refer to the appellant’s statement that had been the subject of the ruling. He was then cross-examined by the appellant as to whether he saw any obvious injuries on the appellant. The officer responded (at AR 40):
“Nothing obvious that I have any recollection of, and with the comments that you had not been involved in any incident, with that, it was – it would appear that that was possible, as opposed to someone who’s been in a fight or roughed up-----”
“We have two options, it seems to me. One is to clarify what he meant by those statements, that is, to go back to the evidence that I had originally excluded and have it placed before the jury or, alternatively, just to disregard it and carry on not; draw attention to it. What’s your attitude?”
Both the appellant and the prosecutor were in favour of disregarding the evidence and continuing with the trial. As it turned out, it was necessary to interpose another witness, before returning to the evidence of Senior Constable Hutchinson after the lunch break. The appellant had no further cross-examination for him and he was excused.
The evidence that was given by Senior Constable Hutchinson that suggested that someone (and whether or not it was the appellant was not made clear by what he had said in front of the jury) had commented that the appellant was not involved in any incident, was not referred to in any way for the rest of the trial.
The appellant now claims that the judge had a duty to inform the appellant that there was another option open which was to discharge the jury and start the trial again. That option was not expressly referred to by the trial judge. It can be inferred that the reason that the trial judge did not refer to that option was that the prejudice to the appellant that had been caused by the making of that gratuitous statement by the police officer was slight. As the judge justifiably did not consider the discharge of the jury within the range of feasible options, the judge did not need to explore that with the appellant.
The basis on which the complainant was cross-examined was consistent only with an admission by the appellant that he was present at the altercation between them. Any prejudice from the evidence given by Senior Constable Hutchinson, to the extent that it suggested that the appellant had stated he was not involved in any incident, was displaced entirely by the course of the balance of the trial. There is no substance to the ground of appeal based on the slip by Senior Constable Hutchinson.
Admission of evidence about “cyber crime”
“My answer to that is Mr Markan played with the controls, modified the controls and hacked into the system to get me fired and that always happened on the end – the last day of my shift. You come back the next day and you’d be the king pin.”
“I suggest you made a complaint to the police because you wanted revenge for losing that altercation?-- Sir, if Mr Markan had come to me and had an altercation with me face-to-face, no [indistinct] on the hand, I would have gone to hospital ever - with whatever broken bones I had and I would never filed a complaint, but Mr Markan cowardly tried to fire me, tried to sabotage my work on the island on the 6 weeks that I was there, and when he didn’t succeeded he tried to kill me.
I put it to you that you were bitter that Mr Markan had found out that you were causing mischief for him?-- Let me explain something, sir. I inevitably came across Mr Markan’s adventures into cyber crime and ----- ”
The trial judge interrupted the last answer and asked the jury to leave the courtroom. The complainant also left the courtroom, so that the trial judge could discuss with counsel how to deal with the complainant’s answer which suggested that the appellant was involved with “cyber crime”. The prosecutor raised a concern (at AR 90) that the complainant was referring to the appellant’s prior conviction for using a restricted computer without the consent of the controller thereby intending to cause detriment or damage. The complainant returned and when the trial judge explained to him (at AR 94) that it was not a trial about whether or not the appellant was guilty of cyber crime, the complainant responded “But he’s accused me of what he’d done, to get me fired.” The complainant appeared to explain (at AR 94) that the reference he had made to cyber crime was to the things that the appellant had done to equipment to get the complainant fired. Before the jury returned, the trial judge had the Legal Aid barrister formulate the question that he was going to ask to link the complainant’s reference to “cyber crime” to his earlier answer about the appellant’s tampering with the equipment at the resort. The trial judge confirmed with the complainant that he intended answering that question in the affirmative. The complainant had some difficulty when the question incorporated the reference to “cyber crime” and that was accommodated by the way in which the Legal Aid barrister posed the question.
It was suggested in the appellant’s submissions on this appeal that the Legal Aid barrister was opposed to the course of asking the further question to defuse the reference that had been made to cyber crime. The comment made by the Legal Aid barrister (at AR 96) “Your Honour, I’m not going to engage in this with the witness” was in response to a question that had been directed to the Legal Aid barrister by the witness himself. A reading of the entire transcript concerning this aspect does not support the suggestion that the Legal Aid barrister was concerned about the course proposed by the trial judge to minimise the effect of the reference to cyber crime.
When the jury returned, the trial judge explained (at AR 99):
“There’s an obligation in a trial to keep it focused on the real issues in the trial relating to the offence, and you will recall in the course of the evidence that Mr - allegations have been put – or suggestions have been put to [the complainant] that he had tampered with equipment at the resort. [The complainant’s] response to numerous questions had been to say that he had not done that, but to suggest that Mr Markan had done it and that’s really where we left it, and I just wanted to make sure that we didn’t get bogged down in irrelevant side issues. I’ll hand it back to Mr Lancaster to complete his cross-examination.”
“In your answer to my question just before her Honour sent the jury out, you were referring to your view that Mr Markan was tampering with the equipment at the resort?— That’s correct, sir.”
Interference in cross-examination of Senior Constable Dods
Senior Constable Dods was one of the investigating officers in relation to the incident and saw the appellant at about 5pm on the day of the incident at the Southport Police Station. In cross-examination the appellant asked Senior Constable Dods about his investigation. Senior Constable Dods then outlined the inquiries that had been made with staff at the resort and medical staff and the version of events provided by the complainant. The appellant then asked (at AR 151) “Have you decided that what happened was the result of an assault?” The prosecutor objected to that question and the trial judge upheld the objection on the basis that it was not appropriate to ask the witness his opinion. During a lengthy exchange between the trial judge and the appellant in the absence of the jury, which then followed, the appellant described that his strategy for the cross-examination of Senior Constable Dods was to get him to compare the complainant’s statement with the other information that he gathered in the investigation (and particularly that there was no evidence in the hospital notes of a head injury). The trial judge explained (at AR 155) that it was more a question for the appellant to raise in argument with the jury as to the comparison of the evidence adduced by the prosecution.
Later in the cross-examination the appellant referred Senior Constable Dods to the fact that he had received the appellant’s affidavit in October 2007 and asked him (at AR 163) “Have you examined the possibility of me acting in self-defence?” After Senior Constable Dods had answered that question, the appellant then proposed to ask the question “Can you tell us why did you come to the conclusion that my action was not result of self-defence?” The trial judge ruled that was not a proper question for the witness. The appellant then cross-examined Senior Constable Dods about other evidence that he had, apart from what the complainant had told him. In the course of dealing with the medical evidence, Senior Constable Dods explained that he had conversations with the medical staff. The trial judge intervened (at AR 164) and explained that the medical evidence had been given by the doctors and that the appellant could not ask Senior Constable Dods about what the doctors told him.
Each of the interventions by the trial judge was unexceptional and proper. It was submitted on behalf of the appellant on this appeal that the appellant wished to attack the credit of Senior Constable Dods and was effectively prevented from doing so by the trial judge. That was not the appellant’s intention at the time of the cross-examination, as revealed by what he conveyed to the trial judge (AR 157) or by the content of the questions that were disallowed. In any case, the submission on the appeal is not sustainable on the basis of a perusal of the cross-examination, as the appellant was not denied the opportunity to question the officer on questions that were relevant to the officer’s credit.
Procedural unfairness due to appellant representing himself at trial
(a)that strict proof of the photographic evidence of the injuries could be insisted on;
(b)the meaning of the term “grievous” before the appellant was called on to cross-examine the medical experts; and
(c) that the jury would not get to see his affidavit and could not lawfully acquit on self-defence, unless he gave or called sworn evidence in support of the claim of self-defence.
In basic terms, the duty of a judge presiding at a criminal trial is to ensure that the trial is conducted fairly and in accordance with law: MacPherson v The Queen (1981) 147 CLR 512, 523 (MacPherson); and R v Kerbatieh (2005) 155 A Crim R 367, 379-380 [52]-[53]. It was recognised in MacPherson (at 524, 535 and 547) that fulfilling that duty will in certain circumstances require the judge in a criminal trial to give advice to an unrepresented defendant. The test that was formulated by Gibbs CJ and Wilson J at 524 was in terms “the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.”
The endorsements on the indictment show that the appellant was appearing on his own behalf when his matter was reviewed in the court a number of times before the trial. The appellant had appeared before the trial judge about a week prior to the day the trial commenced. On the day of the trial, the trial judge referred (at AR 7) to the fact that she was aware that the appellant had taken some advice as to the way things worked in the court and in relation to the conduct of the trial.
Before the arraignment, the trial judge provided the appellant with a document entitled “Notes on Trial Procedure from the Judge” that explained the steps in the trial from the opening by the prosecutor and the appellant’s rights at the various stages covering cross-examination of the prosecution witnesses, the possibility of a no case submission, the defence election to give or call evidence or do neither of those things, closing argument, admissions, good character, alibi and how to obtain guidance during the trial from the trial judge by standing and saying “there is a matter I wish to raise in the absence of the jury”.
After the arraignment and empanelment, the jury retired and the trial judge took the appellant through the notes on trial procedure (at AR 13-16). During the course of that explanation, after dealing with the process of the giving of evidence, the trial judge dealt with the appellant’s address to the jury (at AR 15):
“At the end, when all of the evidence has been presented, you may address the jury, presenting arguments as to why the prosecution case should not be accepted or why you should be found not guilty. In your address to the jury you may discuss the law, you may discuss the evidence that was given, but you cannot introduce new evidence. So you need to note that the suggestions that you put to witnesses in cross-examination do not become evidence unless the witness accepts the suggestion. So the evidence is the witness' answer, not your suggestion. In your arguments to the jury at the end of the case you must not assert facts that have not been supported by the evidence. So if you're making arguments with reference to facts you have to - those facts need to be facts that have been provided in evidence.”
As one of the issues at the trial was whether the appellant had inflicted grievous bodily harm on the complainant, the nature and extent and consequences of the injuries sustained by the complainant in the altercation with the appellant was critical evidence. The complainant gave evidence of going by ambulance to the hospital after the incident and that photographs of his injuries were taken a few hours after he arrived at the hospital. The photographs that were marked exhibits 6 to 11 were taken at that time. There were photographs taken two days later that were marked exhibits 12 to 14. The photographs were tendered in conjunction with the evidence given by the complainant about his injuries. He was able to identify them, as he was the subject of the photographs.
The trial judge in her initial explanation to the appellant about trial procedure had explained to the appellant (at AR 14) about objecting to the tender of exhibits such as documents, photographs and other things. The trial judge explained that any objection had to be supported by argument. The trial judge had indicated in relation to objections for evidence that examples of grounds for objection were relevance and hearsay.
The submission was developed on the appeal that the photographs put through the complainant were documentary hearsay and that the appellant had the right to insist on the photographer being called. The photographs were taken at a time proximate to the infliction of the injuries. It was not the appellant’s case that the photographs depicted an erroneous view of the injuries. (In fact, the appellant relied on some of the photographs that were exhibits to cross-examine the emergency medicine specialist and the prosecutor tendered an additional photograph of the complainant’s leg (exhibit 16) to assist the appellant’s cross-examination.) Any attempt by the appellant to object to the admission of the photographs, unless the photographs were tendered through the photographer, could not have met with any practical success at the trial in excluding the photographs. The trial judge’s duty to facilitate a fair trial for the defendant did not oblige the trial judge to explore sterile possibilities with the appellant.
In relation to the meaning of “grievous”, it was submitted on the appeal that the issue of the likelihood of a permanent injury to health without treatment was not explored by the appellant in cross-examination. The submission was made that the circumstances of the case required the trial judge to draw attention to the significance of what was involved in establishing that the injuries amounted to grievous bodily harm and how that might be pursued in cross-examination, before the treating orthopaedic specialist was cross-examined.
The prosecutor in her opening had outlined what was meant by grievous bodily harm (at AR 37):
“But grievous bodily harm is defined by our criminal law. It states that it includes – the relevant part is that it includes any bodily injury of such a nature that if left untreated would endanger or be likely to endanger life, or in this case, cause or be likely to cause permanent injury to health, whether or not treatment is or could be available.
Here the injuries relied upon by the Crown are the breaks to the arm of the complainant, and you will hear medical evidence about the issue of what would happen if they were left untreated, but as a matter of common sense, it’s clear that if those breaks were not treated they would have caused – in the Crown’s submission, a permanent injury to health.”
The prosecutor used the words of the definition in cross-examining the orthopaedic surgeon. The prosecutor expressly asked the orthopaedic surgeon (at AR 47) whether the injuries to the complainant’s left arm, if they had been left untreated, would have been likely to cause permanent injury to health. The orthopaedic surgeon was uncompromising in his answer that he thought that the injuries “definitely” would have been likely to cause permanent injury to health and therefore constituted grievous bodily harm.
The appellant’s cross-examination of the orthopaedic surgeon appeared to show some appreciation of the technical definition of grievous bodily harm, as the appellant suggested that the operative treatment for the broken bone was the choice made by the orthopaedic surgeon, when the hospital discharge notes had left open the option of conservative treatment (at AR 48). The orthopaedic surgeon was dismissive of conservative non-operative treatment and stated that “the clear indication was that [the complainant] required… operative treatment”.
In view of the nature of the fracture of the midshaft of the complainant’s left ulna on which the orthopaedic surgeon performed an open reduction internal fixation, it is difficult to see how the appellant could have realistically pursued the lines of inquiry that his counsel on the appeal submit could have been a legitimate forensic approach taken by the appellant at the trial. Again, this is another issue on which the provision of technical advice by the trial judge on possible ways of cross-examining the orthopaedic surgeon to explore whether all aspects of the definition of grievous bodily harm were met was not going to alter the plain facts of the injuries to the left arm or the definitive opinion offered by the treating orthopaedic surgeon. In the circumstances of the case in which reference to the technical definition of grievous bodily harm had been made in the trial prior to the cross-examination of the orthopaedic surgeon, the trial judge was not bound to give the explanation suggested by the appellant’s counsel on the appeal. If an explanation had been called for, the appellant cannot show on this appeal that any miscarriage of justice was caused by the trial judge’s omission to explain the definition of grievous bodily harm to the appellant.
The last aspects on which the trial judge’s explanations to the appellant were attacked on appeal was in ensuring that the appellant understood that his affidavit which he had provided to the police was not before the jury and that for the issue of self-defence to be left to the jury, the appellant needed to give evidence of his version of how the physical altercation occurred.
After the prosecution case was closed late in the afternoon of the second day of the trial, the appellant made a no case submission that was immediately rejected by the trial judge. The appellant was then given overnight to decide whether or not he would give or call evidence. In the exchange between the trial judge and the appellant before the court adjourned at the end of the second day, the trial judge reiterated what was evidence (at AR 170-172). At the end of this exchange, the prosecutor expressly raised the issue of whether the appellant understood that his affidavit was not in evidence. The appellant answered in the affirmative.
“HER HONOUR: You understand that the only evidence that the jury can use is the evidence that’s been led in this Court.
DEFENDANT: Yes.
HER HONOUR: At the moment, there is no evidence of self defence. You understand that?
DEFENDANT: It would be impossible to present evidence of self defence as such. It’s basically a choice between heads and tails.
HER HONOUR: Well, it is a choice that you have to make.
DEFENDANT: Yes.
HER HONOUR: But at the moment, the only evidence is the evidence that [the complainant] gave. That is the only evidence in relation to what actually happened. The only direct evidence comes from [the complainant]. If you don’t give or call any additional evidence, you will be limited, really, to attaching (sic) his credibility.
DEFENDANT: Yes.
HER HONOUR: You understand that?
DEFENDANT: Yes, I do.”
When the appellant was called upon in front of the jury to say whether he intended to adduce evidence, he informed the court that he was not giving or calling evidence. He then addressed the jury. Although he did endeavour to refer to self-defence in his address, he was reminded by the trial judge that there was no evidence of self-defence. He then used his address primarily to attack the credit of the complainant.
Whether or not the trial judge has fulfilled the obligation to provide sufficient information to the appellant has to be considered in the circumstances and the context of the whole trial. Taking into account all the explanations (including the written document on trial procedure) that were given to the appellant from the commencement of the trial until immediately before he was called upon, the trial judge had armed the appellant with information that enabled him to make the decision on whether or not he gave evidence relevant to his claim of self-defence. It was not for the trial judge to make the decision for him. The fulfilment of the duty of the trial judge in dealing with the appellant should not be judged by the forensic decisions made by the appellant in the course of the trial. The trial judge did not fail to ensure that the appellant received a fair trial.
Conclusion and order
None of the grounds of appeal (whether considered separately or aggregated) supports that there has been a miscarriage of justice. It follows that the appeal must be dismissed.
DOUGLAS J: I agree with the reasons of Mullins J and the order proposed by her Honour. I also wish to say something about the issue argued whether the photographer must be called to allow photographs to be admitted into evidence. The point was discussed by the Full Court in Schmidt v Schmidt.1 There, reliance was placed on a passage from Wigmore on Evidence2 to this effect:
“On the one hand, the mere picture or map itself cannot be received except as a non-verbal expression of the testimony of some witness competent to speak to the facts represented. On the other hand, it is immaterial whose hand prepared the thing, provided it is presented to the tribunal by a competent witness as a representation of his knowledge.”
The more recent decision of the Court of Criminal Appeal in R v Sitek,3 relying partly on a later edition of Wigmore than that referred to in Schmidt, expanded the use to which photographs and video recordings may be put to allow them to be treated as real evidence to prove what they recorded and whose admissibility is not limited to the descriptions of the scenes included in them by the witness through whom they were proved.4 The New South Wales Court of Appeal has also recognised that Schmidt may need reconsideration to permit the receipt of photographs into evidence even if no human is capable of swearing that he or she personally perceived what a photograph purports to portray.5
Whether the decision should be reconsidered does not arise here, however, as the photographs were used testimonially in support of the complainant’s evidence about his own injuries which he was able to identify as the subject of the photographs.
R
Markan [2009] QCA 110
(1981) 147 CLR 512
On the morning of the third day of the trial, in the absence of the jury, the trial judge inquired of the appellant as to whether he had decided to give or call evidence. He advised that he would not present any extra evidence. The following exchange then occurred (at AR 175):