Stevens v McCallum [2006] ACTCA 13

Stevens v McCallum [2006] ACTCA 13 - ACTCA 2006 case summary — Zoe

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11. Ms Jones then sought to have a transcript (not then available) and photographs of Ms Hieser also identified. The photographs were marked as MFI 2. There was also a record of a conversation, at about 11.20 pm that same day, with the appellant. He declined to be interviewed. The transcript of the conversation with Ms Hieser, it having by then become available, was marked as MFI 3.

12. The domestic violence order, contravention of which had been admitted, was tendered as exhibit 4. Its relevance to the charge of assault was not immediately apparent but it was not objected to.

13. Mr Elmaraazey then cross-examined the informant. At this point it is pertinent to observe that the only relevance of her evidence to the offence charged was the distressed and bruised condition of Ms Hieser which would become supportive of the charge if Ms Hieser gave evidence of being beaten by the appellant or if that was proved otherwise. The conversation with Ms Hieser, as the matter unfolded, was clearly being identified, in case, as turned out to be the fact, Ms Hieser did not give evidence supportive of the prosecution case.

14. In that event, the prosecutor might have sought leave to have the witness refresh her memory from the tape (or the transcript of it) pursuant to s 32 Evidence Act 1995 (Cth) (Evidence Act). Alternatively, leave might have been sought to cross-examine the witness, pursuant to s 38 thereof, if her statement, as recorded, was inconsistent with her evidence. Pursuant to s 38(6) (Evidence Act) notice of intention to do so would have to have been given. No prior notices had been given it seems.

15. At this stage, so far as Mr Elmaraazey was concerned, he did not know what Ms Hieser had said to the informant. He had no reason to assume that Ms Hieser's evidence would not support the prosecution case statement. There had been no disclosure by Ms Jones of any problems in that area. That situation would have been avoided had Ms Hieser been called and examined first as is usually the fairer course for that kind of reason. Ms Hieser might or might not have related the marks on her body to an assault by the appellant. She might have described an assault in terms inconsistent with those marks. It is important that a defendant know what case he or she is to meet before being called on to cross-examine other witnesses.

16. Mr Elmaraazey first cross-examined the informant about Ms Hieser's lack of sobriety. The informant conceded that Ms Hieser smelt of intoxicating liquor, had admitted to drinking alcohol, but said, "I didn't form the opinion that she was overly intoxicated". Mr Elmaraazey then asked her -

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72. The appeal to this Court asserts that his Honour erred in failing to agree that the original conviction was unsafe and unsatisfactory and in rejecting the contention that the incompetence of counsel led to a miscarriage of justice. There is an appeal concerning the findings concerning sentencing, alleging his Honour erred in not finding that her Worship had breached the De Simoni principles (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383) and in not finding that her Worship should have had regard to the facts admitted or proved in respect of the prior offence before imposing an additional sentence for breach of recognisance.

73. Mr Thomas, for the appellant, supported the contentions in the Notice of Appeal submitting that, but for the tender of it by Mr Elmaraazey, exhibit 3 would, contrary to Tamberlin J's view, have remained inadmissible. Consequently, it was submitted, Mr Elmaraazey's tender of and his cross-examination of the informant about exhibit 3 constituted "flagrant incompetence" (see TKWG v The Queen [2002] HCA 46; (2002) 212 CLR 124; R v Birks (1990) 19 NSWLR 677).

74. Indeed, s 66(4) (Evidence Act) expressly forbade the tender of exhibit 3, without leave, before the person who made the representations in issue, that is, Ms Hieser, had completed her evidence in chief. That provision was not adverted to, though it may be inferred that, in substance, leave was given.

75. Reference was also made to s 44 (Evidence Act) which (per s 44(1)) would have forbidden Mr Elmaraazey from cross-examining Constable McCallum about what Ms Hieser told her until that statement had been admitted into evidence or had qualified to be so admitted.

76. The obvious point following on from that was, absent exhibit 3, that there was no evidence sufficient to safely to convict the appellant.

77. Oral argument focussed on the prosecution decision first to call the informant. It is true that the latter could have and did give admissible evidence concerning Ms Hieser's distressed and injured condition. Other evidence, however, would have been necessary to link those observations to an assault upon Ms Hieser by the appellant.

78. If Ms Hieser had given evidence supportive of her statement to the informant, no occasion would have arisen for any application under the s 32 (Evidence Act) (revival of memory in Court) or s 38 (Evidence Act) (unfavourable witness). Exhibit 3 would then have been available for use only by defence counsel and then only if s 43 and/or s 44 (cross-examination on admitted prior inconsistent statement or on a statement of that kind proved by the person to whom it is made) was applicable.

79. It seems likely that Mr Elmaraazey was expecting Ms Hieser to give such evidence. Then, if exhibit 3 was proved, he could have put to her the allegations arising therefrom of use of a knife and assault on the child, none of which formed part of the prosecution case in an attempt, perhaps, to show her testimony was exaggerated and, hence, unreliable. That would have been, in itself, a risky strategy more likely than not to be counterproductive, but at least a purpose could have been perceived.

80. If Ms Hieser had given evidence first, as would have been the more usual and fairer course, those matters would not have been in issue. The forensic exercise would have been to leave Ms Hieser's evidence and credibility alone rather than to attack it.

81. Further, even if Ms Hieser had then been shown exhibit 3 by the prosecutor, assuming leave under s 32 (Evidence Act) had been granted, the response elicited did not affirm at all the truth of what she had said to the informant. She was not even asked to do so. She affirmed that she made the statements to the informant recorded in exhibit 3 but did not affirm their truth.

82. It followed that the appellant was denied, by his own counsel's actions, the protections against the use of hearsay evidence provided by ss 32 and 38 (Evidence Act). Mr Thomas contended that there was a further unfairness in that defence counsel had also been lured into raising uncharged acts (possession of offensive weapon (a knife) and assault on the child) to the prejudice of the appellant as it happened.

83. That, Mr Thomas contended, further supported the contention that the initial trial had been tainted by a miscarriage of justice.

84. As to the sentencing phase, Mr Thomas focussed mainly upon the decision of her Worship to impose an additional sentence upon the appellant without any evidence as to the circumstances of the original offence.

85. His Honour, Tamberlin J had rejected the contention that Magistrate Doogan, had been entitled to have regard to the obvious injuries sustained by Ms Hieser in imposing the sentence she did on the common assault charge. Although there may have been error in not adverting to the need to separate out old injuries from those, if any, sustained, relevantly recently, it was not an error of principle to take account of such injuries, not being "actual bodily harm", as may have been caused by the assault in question.

86. Save for the fact that there was no reference to the facts underlying the prior conviction, we perceive no other ground for considering that the sentences imposed by her Worship were not open to her. That, of course, if the sentence is reconsidered, does not oblige any subsequent sentencer to adhere to the same result.

87. Mr Refshauge SC, Director of Public Prosecutions, submitted that exhibit 3 would have been admitted in any event at the behest of the prosecutor. Hence there was no miscarriage of justice. He acknowledged that the witness had been permitted to refresh her memory from exhibit 3 but pointed out that the application for leave to cross-examine her pursuant to s 38 (Evidence Act) had not, in fact, been pursued. Nor, although cross-examination of Ms Hieser was in fact undertaken by the prosecutor, had Ms Hieser been asked to acknowledge the factual truth of what she had said to the informant. She was only asked to affirm that what she had said was accurately recorded.

88. Nevertheless, the issue, he submitted, was whether a reasonable chance of acquittal had been unfairly lost.

89. Mr Refshauge SC accepted that, had Mr Elmaraazey merely left the informant unchallenged, then, at the end of Ms Hieser's evidence, there would have been no case to answer. To avert that situation, the prosecutor would have faced the prospect of not only gaining leave to cross-examine but also of tendering exhibit 3 as proof of the truth of the representations made therein.

90. It is apparent that the issue of the admissibility of and the purpose of the admission of exhibit 3 was not considered. Mr Elmaraazey's astonishing tender of it, obviously took both the prosecutor and the learned Magistrate by surprise. Nevertheless, Mr Refshauge SC contended, the tender of exhibit 3 made it evidence for all purposes.

91. So far as sentence was concerned, Mr Refshauge SC argued that the lack of information concerning the original offence was not a relevant error. However, he had to concede that, if there was to be a significant further sentence imposed, the circumstances of the prior offence were, at least, relevant.

92. We should make it clear that, whilst no general rule can be laid down, the exercise to be undertaken in dealing with a breach of recognisance involves two discretionary decisions.

93. The first is whether the breach is of such gravity and consequence as to require estreatment of the recognisance and, hence, reconsideration of the original sentence. That is a process not unlike that of breach of contract. Is the breach sufficiently serious that the agreement should be regarded as ended?

94. The next is a consideration, in the light of the breach, of the original sentence. The consequences of breach of recognisance are spelt out in s 404(4) of the Crimes Act 1900 (ACT) -

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129. The role of the trial judge, it is apparent, cannot be overlooked and, of course, the scope for such correction of incompetent acts or omissions is greater where the trial is by judge alone. The errors of counsel in the present case, in tendering exhibit 3, included failing to submit that its use be restricted to possible contradiction of Ms Hieser in the event of evidence being given by her contrary to the appellant's version of events and introducing prejudicial material for no useful forensic purpose. Those errors went to the heart of the decision making process her Worship undertook. In so far as those errors should have been corrected by her Worship, they were not. Whilst it cannot be suggested that her Worship was at fault in not doing so, it has resulted in a miscarriage of justice. To that result, the prosecution had contributed by itself seeking to adduce evidence of the making of a statement by Ms Hieser, the content not, however, being then tendered, leaving defence counsel with a dilemma as to whether it should be exposed to the court by way of tender of it - so that it could be then raised as a contradictory version with Ms Hieser - or leaving it till later to have it in evidence, assuming that course still to be then open, or undertaken. The competent course would have been to wait and see what Ms Hieser said and then cross-examine on any prior inconsistent statement that emerged. If there was none, then refraining from any cross-examination would have left the prosecution with no case.

130. It is instructive to note the approach of Kirby J in Nudd (supra). His Honour found recognition of, at least, an implicit assumption of a right to the provision of competent legal counsel in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; TKWG (supra) and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 79 ALJR 755; 214 ALR 92.

131. His Honour also made reference to Tuckiar v The Queen [1934] HCA 49; (1934) 52 CLR 335 where the incompetence of trial counsel had been so egregious that the accused was discharged on appeal (see Nudd [46] - "Starke J concluded that the accused had been denied the substance of a fair trial"). Kirby J acknowledged that the incompetence exhibited by Nudd's counsel was "serious".

132. His Honour rejected the suggested test that, to vitiate the trial the incompetence of counsel had to be "flagrant" or "radical", as "unilluminating" [65]. He noted, particularly relevantly to this Territory, that the position in the United Kingdom now reflected the influence of Article 6 of the European Convention on Human Rights (guaranteeing the right to a fair trial). Reference was made to the observation of Henry LJ in R v Peeris [1988] EWCA Crim 597 -

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172. There is also the general discretion to limit the use to which evidence, even if admissible, might be put, if the same might otherwise be "unfairly prejudicial" or be "misleading or confusing".

173. It should be noted that, in Papakosmas, it could not be asserted that s 66(3) (Evidence Act) had any application. The only issue was whether the "complaint" evidence should have been excluded or limited pursuant to ss 135, 136 or 137 (Evidence Act).

174. Such evidence may also attract a warning under s 165 (Evidence Act). That is, a warning to the jury (or tribunal of fact) that the evidence may be unreliable, with an explanation as to why that is so and a warning as to the need for caution in determining whether to accept the evidence and as to the weight to be given to it.

175. In R v BD (1997) 94 A Crim R 131, Hunt CJ at CL, Smart and Bruce JJ, quite apart from s 108 (3) (re-establishing credibility - prior inconsistent statement - recent invention), held that a "complaint", admissible under s 66(2) (Evidence Act), is, if unconditionally admitted, evidence of the truth of its contents, not merely supportive of the credibility of the complainant. (See also R v Maher [2005] ACTSC 41 [23-28], [71-72]).

176. The latter decision emphasises that a prior consistent statement of a defendant in a criminal proceeding may be admissible pursuant to s 108(3) (Evidence Act) and that hearsay evidence of it may be given pursuant to s 66(2) (Evidence Act). In any event, s 60 (Evidence Act) preserves the common law rule that a hearsay statement may be admitted if relevant for a purpose "other than proof of the fact intended to be asserted by the representation". It may be appropriate, in such a case, to limit the use to which such evidence might be put pursuant to s 136 (Evidence Act).

177. In the present case, as Ms Jones had conceded, Ms Hieser's statement would not have passed the test for admissibility under s 66 (Evidence Act). It was not qualified for admission into evidence pursuant to s 43 (Evidence Act). No non-hearsay purpose could be identified for the purpose of admissibility pursuant to s 60 (Evidence Act).

178. It seems to us, therefore, that but for the tender of the recorded statements of Ms Hieser by Mr Elmaraazey it was, at least, unlikely that the statement would have been admitted as evidence that the appellant had assaulted Ms Hieser.

179. There is little doubt that the statement could not have been admitted at the request of the prosecution before the conclusion of Ms Hieser's evidence in chief (see s 66(4) (Evidence Act)). No ground existed for leave to do so. It was open to the prosecutor, as she did, to have sought leave to put the statement in the hands of Ms Hieser to refresh the latter's memory, if s 32 (Evidence Act) was satisfied. We have noted the failure of the s 32 (Evidence Act) process to refresh Ms Hieser's memory, even following cross-examination thereon pursuant to s 38 (Evidence Act). That failure did not permit the prosecutor to tender the prior statement as evidence of the truth of its contents.

180. There is no doubt that, but for the tender of the statement, at the conclusion of Ms Hieser's evidence, there would have been no evidence sufficient to convict the appellant.

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184. If s 44(2) (Evidence Act) was not satisfied, the document could, nevertheless, have been the subject of cross-examination. The document had already been identified and marked for identification, satisfying s 44(3) (Evidence Act). That sub-section, however, forbids disclosure of the contents of the document until it is or is to be tendered.

185. However, the prosecutor contributed to Mr Elmaraazey's state of confusion by calling the informant before Ms Hieser was called. There was no reason to do so. The statement, if required by prosecutor or defence counsel, could have been proved after or during Ms Hieser's evidence in chief.

186. The prosecutor's decision first to call the informant appears in retrospect to have created the confusion into which Mr Elmaraazey then blundered. Had the prosecutor first called Ms Hieser, as might have been considered more usual, even Mr Elmaraazey would have realised that there was no evidence sufficient to convict the appellant apart from the record of interview with her, which he would then have had no motive to tender.

187. It is true that a decision to call witnesses in a particular order, or not at all, is a matter primarily within the legitimate discretion of the prosecutor. However, a decision of that kind might, in retrospect, be seen to have given rise to a miscarriage of justice (see R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575).

188. To call the informant first, in circumstances where defence counsel does not know what version of events a complainant will, in fact, attest to, is a serious potential disadvantage for even competent defence counsel in then cross-examining supporting witnesses, such as the informant. For example, if Ms Hieser had attested to being cut with a knife, though the prosecution did not allege it, the informant might be asked to confirm that no such wound was noted or, perhaps, even complained of. No doubt the prosecutor, in this case, did not expect that Mr Elmaraazey would embark on the quixotic pilgrimage which he did, but the decision she made can, in retrospect, be seen to have created a situation in which the appellant's counsel had to decide whether to cross-examine the informant in anticipation of evidence being given by Ms Hieser consistent with exhibit 3. A more experienced counsel would have waited until Ms Hieser had given evidence and, perhaps, sought to have the informant recalled had Ms Hieser given a version of events adverse to the appellant but inconsistent with the prosecution case.

189. It is for that kind of reason that it is normally undesirable to call witnesses out of the usual order. The prosecution case in this matter was, essentially, the evidence of Ms Hieser. The other evidence in the case was for the purpose of supporting or not, her account.

190. In all the circumstances, attention was diverted away from the real issue which was whether the appellant had assaulted Ms Hieser that is, inflicted unlawful violence upon her as opposed to injury inflicted by some accident or in self-defence or the like. A subsidiary issue was whether the signs of injury observed by the informant were recent or not or incurred accidentally as Ms Hieser herself suggested as to at least some of them.

191. It follows, therefore, as we announced at the conclusion of the hearing of the appeal, that the trial had miscarried and the result of it ought not to stand. The conviction and sentence were set aside.

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201. Apart from the egregious reversal of the onus of proof that passage represented, it was unfair to expect Mr Elmaraazey to put such an hypothesis to Ms Hieser when she, in her evidence, asserted no recollection as to how she sustained any of her injuries. To have put in submission that the cause may have been otherwise than by reason of an assault was entirely appropriate.

202. Ms Hieser had, in her evidence, however, referred to "previous domestic violence". She had, in the course of her conversation with the informant, which she confirmed by saying "obviously I said that", referred to two separate occasions of violence. As the witness could not recall any actual violence towards her on the day in question, it could not have been excluded, as a reasonable hypothesis, that some, at least, of the injuries, other than an injury resulting from a blow to the face, were inflicted, whether by the appellant or the other person mentioned by Ms Hieser as having assaulted her, otherwise than at the time of the alleged assault. That is, of course, assuming a finding of guilt based on the contents of exhibit 3.

203. So far as the breach of recognisance was concerned, the appellant had been convicted on 26 June 2003 of assaulting Ms Hieser on 5 January 2003. He had been sentenced to 12 months imprisonment to be released after 112 days on a recognisance requiring, inter alia, that he be of good behaviour for 24 months.

204. As counsel for the respondent submitted, the degree of information which ought to be considered concerning an earlier offence when breach of recognisance for a prior offence is considered, will vary.

205. We agree that a breach comprising similar conduct to that constituting the breach will ordinarily result in the activation of the whole or part of a suspended sentence. That will often be a consequence of the need to maintain confidence in the justice system (see R v Doyle (1996) 84 A Crim R 287).

206. It is apparent that the first question is the nature and circumstances of the breach of recognisance alleged. In the current case, whilst there had been a period of compliance thus tending towards leniency (see Nabanardi v Minner (1992) 107 FLR 172; 62 A Crim R 325) the breach was of an egregious kind.

207. Having said that, however, once the court has decided that a re-sentencing of the offender should occur, it is important to bear in mind that it is a re-sentencing informed by knowledge that the original recognisance had not been complied with. In that exercise a knowledge of the original circumstances of the offence, including any extenuating circumstances, would be of considerable importance.

208. It is, however, unnecessary to consider that issue further.

At a glance

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Decision date

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Judgment (174 paragraphs)

Stevens v McCallum [2006] ACTCA 13 (30 June 2006)

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Legislation Cited (4)

Cases Cited (11)