Stevens v McCallum [2006] ACTCA 13 | Case summary | Zoe

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Stevens v McCallum [2006] ACTCA 13

[2006] ACTCA 13

Court of Appeal (ACT)|2006-06-30

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Court

Court of Appeal (ACT)

Decision date

2006-06-30

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

HUMAN RIGHTS ACT

CORNELIUS STEVENS v EMILY McCALLUM

[2006] ACTCA 13 (30 June 2006)

APPEAL - conviction - unsafe and unsatisfactory - incompetence of counsel - loss of chance of acquittal - miscarriage of justice.

APPEAL - sentence - assault - application of De Simoni principles.

APPEAL - sentence - guilty plea to breach of protection order - breach of recognisance - failure to consider facts admitted or proved in respect of prior offence.

Crimes Act 1900 (ACT), ss26, 360, 404

Protection Orders Act 2001 (ACT), s34

Evidence Act 1995 (Cth), ss32, 38, 43, 44, 60, 66, 108, 122, 135, 136, 137, 165

Crimes (Sentencing Procedure) Act 1999 (NSW), ss98, 99

European Convention on Human Rights, Art 6

International Covenant on Civil and Political Rights, Art 14.1

Human Rights Act 2004 (ACT), s21

R v De Simoni (1981) 147 CLR 383

TKWG v The Queen (2002) 212 CLR 124

R v Birks (1990) 19 NSWLR 677

R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211

R v TJF [2001] NSWCCA 127; 120 A Crim R 209

R v Hunter and Sara [1999] NSWCCA 5; 105 A Crim R 223

R v Wakim [1998] 2 VR 46

Nudd v The Queen [2006] HCA 9; 80 ALJR 614

Strickland v Washington (1984) 466 US 668

Dietrich v The Queen (1992) 177 CLR 292

D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92

Tuckiar v The Queen (1934) 52 CLR 335

R v Peeris [1988] EWCA Crim 597

R v YL [2004] ACTSC 115

Skaramuca v Craft [2005] ACTSC 61

SI bhnf CC v KS bhnf IS [2005] ACTSC 125

R v Joanisse (1995) 102 CCC (3rd) 35

Sungsuwan v R [2005] NZSC 57

Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 (PC)

MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (1996) 61 FCR 236

R v Lozano (unreported, NSW Court of Criminal Appeal, 10 June 1997)

R v Rees [2000] NSWSC 643

Kuvanci v Scott [2004] ACTSC 16

R v Esposito (1998) 45 NSWLR 442

Papakosmas v The Queen (1999) 196 CLR 297

The maximum penalty for each such offence was two years imprisonment.
That latter charge was admitted. The former was heard before her Worship Magistrate Doogan (as she then was addressed. It is now “Your Honour”). Miss Jones, of the Office of the ACT Director of Public Prosecutions, appeared for the informant. The defendant was represented by Mr Mamdouh Elmaraazey.
Constable McCallum, the informant, was the first witness called. She had “on 26 September 2004” at 10.22 pm received a message to attend an address at Lyons. That was the residence of Ms Hieser. She, without objection, gave evidence that – Ms Hieser told me, at that time, that she’d been involved in an incident at [that address] with her partner [the appellant].
The informant also observed that Ms Hieser was very distressed, crying and shaken. There was bruising evident upon her face and body.
A conversation was recorded between her and Ms Hieser. She was asked to identify the cassette of the taped conversation. Ms Jones asked that it be marked for identification.
Mr Elmaraazey objected to that. Her Worship, quite correctly, pointed out that it was not being tendered. There was nothing to object to.
Nevertheless, Mr Elmaraazey persisted. He said – We have not heard the tape your Worship. We have not heard the tape, we don’t know what’s in it.
Her Worship permitted the tape to be marked as MFI 1. Mr Elmaraazey clearly did not understand the procedure. He asked – So what’s the point in identifying it if its not evidence? Her Worship – Mr Elmaraazey I’m not going to give you lessons in the law or in evidence at this point in the proceedings.
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.
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.
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.
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.
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.
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 – Did you talk to your colleague to find out if they did find any knife? … Your Worship, as far as I’m aware, the other attending police did not find a knife.
The informant confirmed that, not only was there no knife found but there was no allegation in the prosecution statement of facts concerning the presence of or use of a knife in connection with the assault alleged.
Mr Elmaraazey then suggested – Now she [the complainant] also told you that in the course of the evening, the defendant hit the child, [that is, the child of the defendant and complainant] is that correct? … You Worship, I do not recall if Ms Hieser stated to me precisely that the defendant had hit the child or if he had hit her while she was holding the child, and as a result the child may have been injured during that.
There had been a separate charge alleging assault in respect of the child but it had been dismissed upon no evidence being offered. In any event, that was a reference, it seems from the tape, to something which had happened on the previous evening.
To raise allegations the prosecution was not relying upon or supporting was, to say the least, unwise. However, the matter spiralled somewhat further out of control from that point.
Mr Elmaraazey then turned his cross-examination to the subject of the taped conversation. The taped conversation was, of course, not then in evidence.
He elicited from the informant that Ms Hieser had invited the appellant to her house, despite the domestic violence order. The informant was then asked and agreed that she had charged Ms Hieser with aiding and abetting the appellant’s breach of the protection order.
Mr Elmaraazey then elicited from the informant that Ms Hieser had referred, in the taped interview, to “a knife under the couch”. Mr Elmaraazey, having asked a number of questions about exhibit 3, said – I tender the transcript as an exhibit your Worship.
Unsurprisingly, Ms Jones had no objection. The tape and transcript became exhibit 3. There was no application to limit the use to which that evidence might be put, though it may be that Mr Elmaraazey, for whatever reasons, desired to prove some inconsistency between the statement of Ms Hieser, as taped, and the prosecution case.
There followed some inconsequential evidence from Mr Ryan, a former police officer who had been present with the informant when the matter was investigated. Ms Hieser was then called.
Ms Jones elicited from her that police had attended upon her on 25 September 2004. The informant had, however, deposed to attending upon her on “26 September 2004”. Former Constable Ryan said that he attended on “24 September 2004”, albeit in company with the informant. This confusion was never clarified as it might have been had the witnesses been called in a more conventional order. Ms Hieser was then asked if she remembered speaking to police – Ms Jones: And do you remember telling police about something that happened to you, in your premises that evening, between you and Mr Stevens?

Her account which then followed made no reference to any physical violence. She referred to the defendant “calling me names and he was using Afrikaans”. He then passed out, she said, and she went to the neighbours.
She was then asked about her conversation with the informant. She agreed there was such a conversation but she could not recall it.
Ms Jones then sought, under s 32 of the Evidence Act to have the witness refresh her memory from the tape or the transcript of that conversation.
Her Worship did not rule on that application. She said to Ms Jones – I’ll just let you go a bit further before I consider this.
Notwithstanding that, Ms Jones proceeded to cross-examine Ms Hieser about the various bruises which she asserted had been the subject of that conversation, much as if leave had been given to do so. There was no objection, however, from Mr Elmaraazey.
Ms Hieser said that she did not remember how those bruises had happened. She pointed out that, at the time, she was “pretty drunk”. She had drunk “about 6 or 8 beers plus a bottle of champagne”.
Ms Jones then applied to her Worship under s 38(1)(c), (Evidence Act) for leave to cross-examine Ms Hieser, relying on the proposition that the witness had made a prior inconsistent statement. That was, clearly enough, a reference to exhibit 3.
Her Worship, without hearing Mr Elmaraazey, granted Ms Jones the opportunity to show the witness exhibit 3. That was, effectively to grant leave under s 32 for the witness to refresh her memory in court, again without hearing Mr Elmaraazey. We do note, of course, that Mr Elmaraazey did not raise any objection to her Worship’s course of action.
Ms Hieser’s reaction, on reading the transcript, was to say – Perhaps I am a person who blocks some bad things out or something, but I mean its credible in the sense that obviously I said those things to Emily [Constable McCallum], but I don’t distinctly recall saying that.
She did not any better recall, she said, what actually happened, reiterating, “It’s like a blur, it really is.”
Her position clearly was to accept that the tape/transcript accurately reflected what she told the informant but she could neither confirm nor deny that it represented what had actually happened.
Cross-examination of Ms Hieser by Mr Elmaraazey then followed. For some reason, Mr Elmaraazey put to Ms Hieser that she had told the Child Protection Assessment Unit (of the ACT Government) that the appellant had broken into her residence on the day of the alleged assault and on the previous day. That information was contained, it seems, in a report relevant only to the dismissed information relating to the child. On Ms Hieser denying that there had been any such break-in Mr Elmaraazey then sought to tender the report as “a prior inconsistent statement”. It was not admitted. As the witness had clearly disowned the statement that was clearly a correct decision. The basis on which Mr Elmaraazey could have believed it might be tendered is impossible to fathom.
Following that cross-examination, Ms Jones turned to the subject of exhibit 3 – Your Worship, I wanted to raise the issue of Exhibit 3 at this stage in the transcript and what your Worship takes [sic – “makes”] of that document and the status that it has. Your Worship will recall it was tendered by my friend and when Constable McCallum gave evidence I didn’t object that the – so it’s evidence before your Worship. My friend hadn’t asked for any limitation on that evidence. It’s not admissible pursuant to section 66 [Evidence Act 1995] of course because it doesn’t comply with that. … Well I’m trying to clarify the basis of the admission of that document. The reason being that I have gone so far with the witness in relation to reviving memory. I didn’t pursue the application under section 43 of the Evidence Act because I took the view that in fact that exhibit is an exhibit before your Worship now. It’s already tendered. The process under section 38 doesn’t allow for a document such as that to be admitted as evidence but because that has already been admitted as evidence, I didn’t need to go that further step and seek it to be admitted. Her Worship - My view is that this is a document that is and was in the possession of the defence and it was marked as it can’t, as you say, properly be tendered by the prosecution unless there is no objection. But it was tendered by the defence and it is a document that is properly before me and I tend to regard this as part of the evidence in the case. Ms Jones – I have no further questions for this witness in that case, your Worship.
Exhibit 3 recorded Ms Hieser as saying – Ms Hieser: We went down to Weston we did some shopping then we came back and then he just hit me in the face [“He” referred, in context, to the appellant] …

We note that there is a serious question about the status of this “evidence”, not only as to the use to which it might be put, being hearsay, but also as to what it conveys, being largely unresponsive and taken from a person affected to some considerable degree, on her own assertion, by alcohol.
Her Worship, in her decision, referred to the evidence of the informant concerning Ms Hieser’s distressed condition and bruises. The latter, given Ms Hieser’s evidence as well as that of the defendant could not have been corroborative of a beating of Ms Hieser by the defendant on 25 September 2004.
Both the attending police officers deposed to an incorrect date. However, assuming both police officers had been mistaken and the incident had, indeed, occurred on 25 September 2004, as seems likely, their evidence was that Ms Hieser was in a distressed state. That could have been from verbal abuse only or both verbal and physical abuse. That Ms Hieser was distressed and fearful did not prove any physical assault though it might be consistent with such an event. The bruises they observed were not inconsistent with being inflicted before 25 September 2004 or accidentally. That the prosecutor appeared to concede. The absent proof was, the prosecutor submitted, supplied by exhibit 3.
In her decision, her Worship referred to exhibit 3 - She [Ms Hieser] again was referred to a taped record of conversation that she had, and interestingly, this taped record of conversation was had by Constable McCallum and Ms Hieser at the time when Constable McCallum attended the incident, and that transcript of the conversation – there is a tape, the tape was exhibited or rather became marked for identification but it was not put into evidence as an exhibit, but the transcript which the constable says is an accurate transcript, and there was no challenge to its inaccuracy, was tendered and it was tendered into evidence by the defence. So the transcript is part of the evidence.
There were, her Worship accepted from former Constable Ryan’s evidence, many empty alcohol containers in Ms Hieser’s house. That was some support for the view that each of the parties to the incident were adversely affected by alcohol. It could not have been assumed, despite the informant’s stated impression, that Ms Hieser was fit to be interviewed, in the sense that her account was likely to be reliable. Nevertheless, the informant treated the interview as a witness statement.
The appellant consented to summary jurisdiction and gave evidence. He denied inflicting any injury upon Ms Hieser. He said that she had bruising from falling down stairs whilst drunk. His evidence was somewhat rambling and confused.
Her Worship’s assessment of Ms Hieser’s evidence seemed to accept that Ms Hieser genuinely had a “poor recollection” of the events of 25 September 2004. Hence, it was appropriate to permit her memory to be refreshed by reference to exhibit 3.
Her Worship continued – She looked at what was and is Exhibit 3 and she said, “I said those things to Emily”. So she did virtually accept that even though she couldn’t remember what she said, she was not denying or recanting that she had said these things, I even offered her the opportunity to listen to the tape if she had any doubts …
Clearly, Ms Hieser’s evidence was not “satisfactory”. It did not purport to establish any assault by the appellant as alleged. Her Worship did not find that to be the result of deliberate concealment on the part of Ms Hieser but accepted that it was, at least, possible that – … she was doing her best to recollect and just simply could not recollect.
She found the appellant’s evidence also to be “unsatisfactory”.
In those circumstances, her Worship chose to base her decision on exhibit 3, saying – So really the evidence that I have before me and the most compelling evidence that I have before me is the evidence that is Exhibit 3. Now that is evidence of a conversation. A conversation that was taken at the time when police arrived at the premises. The police were called and there was no dispute about this … But the police were called because they were given advice, or information that there had been an assault.
Her Worship then quoted from exhibit 3 and stated – Peppered throughout all of this is evidence, or information, a complaint, a contemporaneous complaint from Ms Hieser that the defendant had indeed caused the injuries to her.
We should interpolate that there was evidence that some of the injuries predated 25 September 2004 and that Ms Hieser’s statements were not specifically related to any particular injury. However, they did involve a complaint of recent assault. Her Worship continued – And not only is this evidence to my view and to my mind very compelling evidence because it is in my view the most reliable evidence that is available in this case….
Her Worship commented that the “injuries were never tested”, meaning that it had not been put to Ms Hieser that they occurred otherwise than in an assault on 25 September 2004.
Given Ms Hieser’s lack of recollection and varying statements as to how she might have received the injuries noticed by the informant this was a puzzling observation.
Nevertheless, her Worship’s conclusion that Ms Hieser had told the informant she had been recently assaulted by the appellant was clearly open to her as a matter of construction of exhibit 3.
By reason of that complaint, and, though not stated, the distressed state of Ms Hieser, her Worship held that she was satisfied that Ms Hieser had been assaulted by the appellant as alleged notwithstanding the latter’s denial of such conduct.
However, it could not have been assumed, as her Worship seems to have done, that all the observable injuries were caused by the appellant striking Ms Hieser.
Her Worship then sentenced the appellant to 12 months imprisonment for the assault and three months for the breach of protection order to which he had pleaded guilty. Those sentences were concurrent. The appellant was then sentenced to an additional six months for breach of the recognisance imposed by Magistrate Burns on 26 June 2003 which had required him to be of good behaviour for 24 months from that date. The plea of guilty to the breach of protection order charge itself constituted a breach of recognisance. The Appeal to Justice Tamberlin
There was on 23 May 2005, a Notice of Appeal filed against conviction and sentence. Having regard to the decision announced at the conclusion of the hearing of these proceedings it is necessary only to consider the appeal relating to conviction in respect of the assault matter but some observations regarding the sentences imposed are necessary.
The grounds relied upon were – (a) The appellant’[s] conviction is unreasonable and cannot be supported by the evidence. (b) The appellant’s counsel at the hearing in the Magistrates Court was incompetent, and his actions in tendering a taped record of conversation between the complainant and police (upon which the Magistrate chiefly relied in convicting the appellant) caused a miscarriage of justice. …
Justice Tamberlin heard the appeal and delivered judgment, dismissing the appeal on 10 August 2005.
His Honour dealt first with the “unsafe and unsatisfactory” ground. His Honour concluded that there was “ample evidence” to support the conclusion to which her Worship came. Accepting that the conversation between the informant and Ms Hieser was evidence of the facts as asserted by Ms Hieser, the conclusion followed, in his Honour’s view, that the appellant had assaulted Ms Hieser.
That led, inexorably, to the second ground. The “evidence” in question had become available only because counsel for the appellant had, apparently without any prompting or apparent forensic advantage in doing so, decided to tender the record of that conversation.
Counsel for the appellant, on the appeal before Tamberlin J, had submitted that the record of conversation could not have been successfully tendered by the prosecution pursuant to s 38 (Evidence Act). Hence, its tender by the appellant’s counsel not only was incompetent but had led to a miscarriage of justice. His Honour disagreed with that contention. It had not been necessary, his Honour held at [12], that there be “… an express ruling by the Magistrate that the evidence of the witness was unfavourable to the prosecution or that there was no genuine attempt to give evidence on the part of Ms Hieser”, for the statement to have been put in evidence.
His Honour went further, stating at [13] – Section 43 of the Evidence Act provides that a witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness and that if, in cross-examination, the witness does not admit the making of the prior inconsistent statement, the cross-examiner may adduce evidence of the statement so long as he or she informs the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement and draws the witness’ attention to the statement in so far as it is inconsistent with the witness’ evidence.
Although that occasion did not arise his Honour considered that – It is more probable than not that the transcript would have been admitted as a prior inconsistent statement.
That was because, in his Honour’s view, Ms Hieser’s stated recollections on the night in question were inconsistent with her lack of recollection when giving evidence.
The objections to the sentences imposed were also rejected. Submissions in the Court of Appeal
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) 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.
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) 212 CLR 124; R v Birks (1990) 19 NSWLR 677).
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.
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.
The obvious point following on from that was, absent exhibit 3, that there was no evidence sufficient to safely to convict the appellant.
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.
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.
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.
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.
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.
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.
That, Mr Thomas contended, further supported the contention that the initial trial had been tainted by a miscarriage of justice.
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.
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.
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.
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.
Nevertheless, the issue, he submitted, was whether a reasonable chance of acquittal had been unfairly lost.
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.
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.
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.
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.
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?
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) – (d) if the person was released without sentence having been passed on him or her—impose on the person any penalty that the court would, if the person had then and there been convicted of the offence with which he or she was originally charged, be empowered to impose or make any order (including an order under section 403 (1)) [release without sentence with or without recognisance] that the court would, if he or she had then and there been convicted of the offence of which he or she was originally charged, be empowered to make; or (e) if the person having been sentenced, was released forthwith or after he or she had served a specified part of the sentence imposed on him or her—commit the person to prison to undergo imprisonment for the term, being a term not exceeding the sentence or the balance of that sentence, as the case requires, or make any order (including an order under section 403 (1)) that the court would, if he or she had then and there been sentenced for the offence of which he or she was originally charged, be empowered to make. (see also ss 98 and 99, Crimes (Sentencing Procedure) Act 1999 (NSW)).
It must always be a matter for judgment as to how much of the original sentencing material or any relevant subsequent material should be put before the re-sentencing judge or magistrate. A useful test would be to ask whether the omitted material would have led to appellable error if not considered in the original proceedings.
However, as we have already determined that the proceedings before her Worship had fundamentally miscarried, it is not necessary to go further on this aspect of the appeal. The issues Incompetence of Counsel
We are grateful for the full analysis of this issue provided by both counsel but particularly by the Director of Public Prosecutions.
Reference was made to R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211. In that case, counsel had engaged in extremely offensive and improper comments and abuse directed towards the Crown prosecutor and the judge, some of it in front of the jury. Hulme J (Sully and Hidden JJ agreeing) could only describe it as “appalling” (at 214-5). His Honour concluded at 218 – It does not follow that misconduct by counsel necessarily entails that the trial in which it occurred was unfair, or that there has been a miscarriage of justice.
In fact, there were in McIntyre other grounds to set aside the verdict recorded and to quash the conviction so that it was unnecessary to rule on the issue as to the effect the conduct of counsel had on the fairness of the trial.
Contrary to the respondent’s submission, there was, in fact, no finding that counsel’s conduct had led to an appellable miscarriage of justice, though it had been seriously prejudicial to the accused’s prospects (if any) for acquittal.
R v TJF [2001] NSWCCA 127; 120 A Crim R 209 (Beazley JA, Studdert and Sperling JJ) was a case of sexual assault. Studdert J delivered the judgment of the Court. A ground of appeal relied upon the incompetence of counsel in failing, inter alia, to apply for separate trials.
Reference was made to the guiding principles expressed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685. Those relevant principles, may be summarised as follows - 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
The complaint of incompetence did not succeed in TJF though other complaints were upheld.
Another case referred to was R v Hunter and Sara [1999] NSWCCA 5; 105 A Crim R 223. Again, a failure to ask for separate trials had been relied upon as demonstrating incompetence leading to a miscarriage of justice.
Wood CJ at CL (Meagher JA and Dunford J concurring) agreed serious errors had been made by counsel and concluded that a miscarriage of justice had occurred in respect of the appellant, Hunter. Counsel had represented both, despite a clear conflict between the two accused. For example, no independent advice was given about Hunter raising his good character. The concatenation of a variety of egregious errors was sufficient to support the complaint that a miscarriage of justice had occurred. However, the case against Hunter was also adjudged to be unsafe and unsatisfactory. It was clear that the question whether incompetence of counsel has led to a “miscarriage of justice” must be looked at in the context of the entire case.
In R v Wakim [1998] 2 VR 46, Winneke ACJ observed (at 53) – Decisions made during a trial as to tactics to be employed are decisions which depend on the judgment of counsel who is in a far better position to make those decisions than is this court. That is why such decisions, even if we believe them from our vantage point to be unwise or unsound, will almost never found a successful appeal on grounds of miscarriage: see Re Knowles [1984] V.R. 751; R v Miletic [1997] 1 V.R. 593 at 600.
Ashley AJA expressed the test, somewhat dramatically, but effectively, as (at 51) – Where the conduct of counsel at trial, particularly in making a tactical decision, is called into question, I consider that, most often, a value judgment of like character must be made [that is, of like character to manifest excessiveness of sentence] by an appellate court. Cases where what Mr Kent [for the applicant] called the “shock factor” – an instinctive recoiling from what was done – is present will, if and when they occur, define themselves as cases in which intervention by an appellate court is proper – provided, of course, that the “shock factor” or reaction is present when the matter is considered from the perspective of a decision made at trial rather than with the excellence of vision which hindsight gives.
An appellant, of course, carries the onus of persuading the court that such a miscarriage of justice has occurred, that is, that a substantial chance of acquittal has been unfairly lost.
In TKWG v The Queen (2002) 212 CLR 124, counsel’s decision not to call character evidence was called into question. Counsel had been told by the Crown counsel that, if such evidence was called, the latter would respond by calling evidence of similar facts, not otherwise admissible, alleging sexual acts by the accused against the complainant’s sister. Defence counsel did not seek a judicial ruling on the proposal.
Gleeson CJ considered that that decision, though, with hindsight, perhaps wrong, could not be regarded as otherwise than understandable. The trial judge had no obligation to give an advance ruling though he should, perhaps, have been asked. His Honour concluded (at 130) – … in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.
Gaudron J pointed out that the question of whether an accused was not competently or adequately represented “poses particular difficulties for an appellate court” (132).
Her Honour also addressed the question as to whether counsel’s tactics may have been designed to obtain a forensic advantage or avoid a forensic disadvantage. At 133, she said – Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice …. … As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
To like effect were the separate judgments of McHugh and Hayne JJ.
The essential principle affirmed in this case is that it is often difficult to speculate on why counsel may or may not have adopted a particular course. If it appears evidently forensically defensible, that would militate against there having been a miscarriage of justice.
A more recent decision, handed down after argument in this case was concluded, is Nudd v The Queen [2006] HCA 9; 80 ALJR 614. In that case, counsel and solicitor for the accused were alleged to have failed to obtain relevant instructions, to have understood the elements of the offence and to have considered applicable judicial decisions.
There was little doubt but that the legal representation was woefully inadequate and incompetent. However, the case against the appellants, even allowing that some evidence might have been excluded by competent counsel objecting to it, was overwhelming.
The approach of the members of the Court varied, though all agreed that the appeal should be dismissed.
All agreed that, if the accused had been deprived of a substantial, not fanciful, chance of acquittal by reason of the effect of counsel’s incompetence (or any other irregularity) then the verdict could not stand. It would be the result of a miscarriage of justice.
Gleeson CJ, however, pointed out that not all failures in due process need to lead to a clearly unsafe or unsatisfactory result to render the verdict appellable. At [6] he said- … Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.
Further at [7] – … Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose.
His Honour pointed out, also, that the question of incompetence of counsel is not a pejorative reflection on the skill or learning of the particular legal practitioners concerned, though that could explain the impugned conduct. Rather, it is the acts and omissions themselves as they impact on the fairness of the trial. To that end, it may be relevant to understand why a particular course was taken (see [9-11]). However, the focus of the inquiry is not a critique of the advocacy skills or performance of trial counsel but rather whether the result constitutes a miscarriage of justice.
It is also significant that, his Honour had regard to the enactment of constitutional or quasi-constitutional rights to due process. O’Connor J in Strickland v Washington (1984) 466 US 668 at 687 is, for example, cited saying – This [the constitutional right] requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, [that is] a trial whose result is reliable … a break down in the adversary process that renders the result unreliable.
That consequence, in an Australian context, might be satisfied, say, by counsel wrongly advising that an accused could not give evidence. McHugh J in TKWG (supra) was cited with approval making reference to (hopefully) rare cases where the incompetent performance of counsel is so extreme as itself to constitute a denial of due process that may itself render the entire process defective.
It may be taken from this that, whilst the inquiry as to competence of counsel is purely objective, and the main focus is whether a miscarriage of justice in the sense of a wrongful conviction has, or may have, occurred, there may be cases where the errors of counsel have caused or contributed to a denial of due process which itself is a sufficient affront to the rights of an accused person to require the setting aside of the proceedings.
Also in Nudd (supra), Gummow and Hayne JJ emphasised the objective nature of the enquiry, at [27] – … the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about.
Their Honours did not find it necessary to consider whether a right to due process emerged from Ch. III of the Constitution, breach of which might constitute an appellable error even absent the apparent loss of a fair and reasonable chance of acquittal.
Callinan and Heydon JJ cited Gaudron J in TKWG (supra) with approval in emphasising the need for an objective assessment of the conduct of the trial “and whether, so viewed, the course taken by counsel was capable of explanation” (Nudd at - [157]).
Their Honours accepted that, on no view of it, could counsel’s conduct at trial have been other than seriously incompetent, and concluded at [162] – This is a case which does cause concern. It is most unfortunate that a person charged with such a serious crime as the appellant was, should come to be represented by a person whose competence fell short of the standard which a court should be entitled to expect. However, just as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel. We have come to the conclusion that this was such a case. That does not mean of course that a person against whom the case is a very strong one, is not entitled to a fair trial. But unlike in the operating theatre, there is in the criminal court a suitably qualified judge, detached from the protagonists and whose duty it is to intervene and make such corrections as need to be made to ensure a fair trial. Trial judges may only correct errors that become apparent to them, but in this case such errors as might otherwise have caused the trial to miscarry, were duly corrected by way of her Honour’s summing up and insistence that instructions be duly obtained.
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.
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) 177 CLR 292; TKWG (supra) and D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92.
His Honour also made reference to Tuckiar v The Queen (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”.
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 – … the proper approach does not depend upon any assessment of the quality or degree of any suggested culpability of counsel. It depends rather on consideration of whether the manner in which the defence was conducted – taken exclusively or in conjunction with other features of the case – was such as to raise any sensible doubt about the safety of the conviction.
A similar approach, his Honour concluded, arose from a consideration of United States, Canadian and New Zealand authorities.
Nevertheless, a question remained whether, even if it appears that the conviction was not unsafe, – at [83] – … the affront to the appearance of justice in the trial is such that a fair trial was not had, requiring a retrial, in effect to uphold the integrity of the judicial process?
Kirby J supported the opinion of McHugh J in TKWG (supra), at 148 [86] – In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law … No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
Kirby J also supported that approach by reference to the provisions of the International Convenant on Civil and Political Rights (ICCPR). The fact of Australia’s accession to that Covenant and First Optional Protocol may, elsewhere than in this Territory, merely require regard to be had to the relevant terms of the Covenant.
In this Territory, by virtue of s 21(1) of the Human Rights Act 2004 (HR Act), reflecting Art 14.1 of the ICCPR – Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Those rights are both recognised and enforceable (see R v YL [2004] ACTSC 115; Skaramuca v Craft [2005] ACTSC 61; SI bhnf CC v KS bhnf IS [2005] ACTSC 125). There is, of course, no specified remedy for breach but, in proceedings of the kind now under consideration, the action required to remedy a breach of s 21(1) (HR Act) is simply to declare the impugned trial to have miscarried, set aside the verdict and sentence and remit the matter for a hearing according to, and not contrary to, law.
Kirby J explained and emphasised the implications arising from Art 14.1 (ICCPR) (and s 21(1) HR Act) at [93-94] – The Human Rights Committee of the United Nations, determining communications complaining about non-compliance with such provisions, has explained that they imply a guarantee of adequate, proper or effective legal representation. The more serious the case and grave the potential punishment upon conviction, the greater is the obligation of the State party to ensure against incompetence in representation by providing the time and resources necessary to prepare an effective defence, so far as this is available. The ICCPR and the elaboration of it by the independent treaty body, afford a useful reminder of the ambit of the obligation to ensure a fair trial for the criminal accused. The notion imports assumptions of basically competent representation without the need invariably to prove that any incompetence demonstrated actually altered the outcome. Because fundamental rights belong to individuals, their provision is not necessarily confined to cases where their deprivation results in adverse consequences that might not otherwise have occurred. Upholding fundamental rights, when applicable, will sometimes have a value in itself. This may be so quite apart from the beneficial consequences of their observance for those immediately affected.
For this Territory, the decisions of the Canadian Court of Appeal for Ontario (R v Joanisse (1995) 102 CCC (3rd) 35); The Supreme Court of New Zealand (Sungsuwan v R [2005] NZSC 57) and the Privy Council (Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 (PC)), in so far as they derive support from the ICCPR or the ECHR, have special resonance. It follows that, in this Territory, at least under Territory law, it is not necessary to establish positively that a miscarriage of justice has occurred, if due process has been denied and a right to a fair trial lost.
It is important to note that merely to conclude that counsel had acted incompetently is a necessary but not a sufficient condition for concluding that due process has been denied. Our conclusion is that it is not “invariably necessary” to show that the outcome would have been different to establish that the result cannot stand as a result of the right to a fair trial having been denied.
It is to be noted, of course, that if, as in Nudd, it positively appears that a conviction was, notwithstanding the defects in the trial process, inevitable, a breach of the right to a fair trial may not suffice to require that the result be set aside.
In the present case, the incompetent conduct of counsel led to the tender of the only evidence sufficient to convict the accused.
It was not necessary to go further and show that it might, or even probably would, have been rendered admissible by the prosecutor, though it is, at least, unlikely that it could lawfully have been so tendered, as appears below. Was exhibit 3 admissible in any event?
It is relevant to consider this question. If exhibit 3 was not tenderable that will support a conclusion that a miscarriage of justice has occurred.
It is apparent that Ms Jones sought to prove exhibit 3 only for the purpose of possible use of it to enable Ms Hieser to refresh her memory. She was clearly taken aback by Mr Elmaraazey’s decision to tender the document before Ms Hieser came to give evidence, as was her Worship. That is unsurprising as no competent counsel or magistrate would have expected such a turn of events.
Section 32 (Evidence Act) relevantly, provides – (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account; (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposed to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate.
It is a traditional rule of evidence at common law that, if a witness has refreshed memory from a document, in or out of court, opposing counsel may inspect it without penalty, that is, without the other party being entitled to tender it as evidence supportive of the witness’s evidence.
Lindgren J, in MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (1996) 61 FCR 236, held that the common law test for “refreshment” of memory had not been displaced by s 32 and s 122 (Evidence Act). In other words, the document in question may be tendered only if, and so far as, opposing counsel has cross-examined upon the document.
Clearly, where, as here, the witness denied any revival or refreshment of memory, there would be no cross-examination on it by any competent counsel in respect of whose client the content would be adverse. It would not gain evidentiary status simply by reason of use to refresh memory absent such cross-examination.
In R v Lozano (unreported, NSW Court of Criminal Appeal, 10 June 1997) a similar situation arose. The witness claimed in evidence no recollection of a more contemporaneous statement, allegedly due to drug use affecting his memory. That contention was regarded as less then convincing. As a result leave was given to cross-examine the witness pursuant to s 38 upon the prior document.
Hunt CJ at CL (at 6 - 7) said – Where, however, the witness has (as in the present case) asserted that he has no memory of events recorded at a time when the events were fresh in his memory, despite being given the opportunity pursuant to s 32 to revive his memory from the record, there may be a distinction to be drawn so far as s 38(1) is concerned between whether the evidence which he has given is not favourable and whether the attitude he has displayed towards the party calling him is not favourable. … if the judge accepts that the witness genuinely does not recall those events, then the evidence is not favourable, and par (a) of subs (1) is the appropriate basis on which to grant leave. If the judge is satisfied that the witness does not genuinely have any such recollection, then para (b) is the appropriate basis upon which to grant leave.
Section 38 (Evidence Act) provides – (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement.
In the present case, leave to cross-examine was given. That was apparently justified by s 38(1)(a) (Evidence Act). Neither of the other two subparagraphs was activated.
Would that justify tender of the prior (hearsay) statement of the witness, absent, of course, her adherence to the truth of the asserted representations?
Section 66 (Evidence Act) applies to such prior representations. Subsection (2) provides, where the person who made the prior representation is called to give evidence – … the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
No doubt it was open for her Worship to find that the matters referred to in the statement, as recorded, were then “fresh in the memory” of Ms Hieser, with the proviso, of course, that she obviously had been drinking heavily, even though the informant noticed no apparent ill-effects. However, there are also ss 66 (3) and (4) of the Evidence Act – (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
The interaction of these provisions was considered by Bell J in R v Rees [2000] NSWSC 643. It was a not dissimilar situation, absent the tender of the prior statement by defence counsel. There was a point of difference also in that her Honour was satisfied that the witness was feigning a lack of current recollection of the events referred to in the prior statement.
No such finding was made in the present case.
However, the representation of the prior asserted fact in this case, being a statement recorded by a police officer, was clearly “for the purpose of indicating the evidence that the person who made it would be able to give in an Australian … proceeding”.
Bell J considered the statement in Rees was admissible pursuant to s 66(2) of the Evidence Act. That record of conversation had not been taken as a witness statement. It was given by Rees in his capacity as a suspect. Her Honour considered it was also admissible under s 43 (Evidence Act) as a prior inconsistent statement.
Her Honour did not consider whether s 66(3) (Evidence Act) applied to the particular statement so as to exclude it if s 66(2) (Evidence Act) was to be relied upon to render the statement admissible.
In Kuvanci v Scott [2004] ACTSC 16 Connolly J considered the application of s 66(3) (Evidence Act). However, the statement in question had been made by an assault victim, identifying (or tending to identify) the appellant as the assailant thus falling outside the exclusionary words of s 66(3) (Evidence Act).
Connolly J in Kuvanci (supra) also referred to R v Esposito (1998) 45 NSWLR 442. In that case, a witness statement taken by a police officer in not dissimilar circumstances from this case was, though within s 66(2) (Evidence Act), held to be excluded by s 66(3) (Evidence Act).
Wood CJ at CL at 450, however, added this caveat – In coming to this conclusion, I do not mean to suggest that s 66(3) will absolutely exclude as inadmissible, hearsay evidence from a witness of all representations made to him by another person who is available to give evidence, and which relate to matters other than identity. In each case, the question will turn upon the purpose for which the representations were made by that other person. Clearly on one side of the dividing line will be a statement, prepared in the form of a proof of evidence, crystallising the product of one or more interviews with him. On the other side of the line will be the product of routine investigations, where it is not known whether the person spoken to and making the representations is a suspect, or a potential witness. The present case crosses the borderline, only because the witness made it expressly clear, from the outset, that he was making the representations for the purpose of disclosing the evidence that he would be able to give, in a prosecution of the principal offender, and referred to himself more than once, in the course of the discussion or interview, as a “witness”.
This raises the question as to how the “purpose” of the statement taken is to be determined. Is it the subjective purpose of the prospective witness, that of the interviewer or is it to be objectively deduced by the reasonable bystander?
Connolly J considered that the statement in Kuvanci (supra) fell within s 66(2) (Evidence Act) because – … It was not in any sense a proof of evidence or a statement “made for the purpose of indicating the evidence that the person who made it” would provide to a court hearing. It was the preliminary and short conversation between [the victim] and the police officer, made before the formal statement setting out what [the victim’s] evidence would be.
Of course, irrespective of lack of admissibility under s 66(2) (Evidence Act), the statement would have been available for examination or re-examination of the witness under s 38 (Evidence Act) (unfavourable witness) or s 108 (Evidence Act) (re-establishing credibility) if the proper ground was laid and leave obtained. It could be used, as Ms Jones intended in this case, again with leave, to refresh memory in court (see s 32 (Evidence Act)).
In our view, it was apparent that the hearsay statement in Kuvanci (supra) “concerned the identity” of a person. It was, therefore, admissible under s 66(2) (Evidence Act) and for that reason would not have been excluded by s 66(3) (Evidence Act). His Honour’s view that it fell outside s 66(3) (Evidence Act) only because it was a “preliminary statement” does not seem to us to be a sufficient reason for it to fall outside s 66(3) (Evidence Act). Nor was that observation necessary to his Honour’s decision. As here, a “preliminary statement” may be the only statement whereby a potential witness indicates the evidence they would be able to give. Further, s 66(3) (Evidence Act) does not exclude from its exclusionary scope, statements of the kind referred to merely because they are “preliminary” or a first draft so long as it appears that the purpose of the statement is to indicate what evidence the person would give as a witness in proceedings. There was no other capacity than that of potential witness in which Ms Hieser spoke to the informant of the events of 25 September 2004.
In Papakosmas v The Queen (1999) 196 CLR 297 statements were made by a complainant to various persons, shortly after the event alleged, to the effect that the appellant had raped her. The statements were tendered as evidence of lack of consent.
Gleeson CJ and Hayne J commented (at 308) – The fact that hearsay evidence falls within one of the exceptions to the exclusionary rule contained in s 59 does not necessarily mean that it will be received, or used for a hearsay purpose. The Act confers on courts a general discretion to refuse to admit evidence in certain circumstances (s 135), and it obliges a court, in a criminal proceeding, to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant (s 137).
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”.
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).
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.
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]).
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).
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).
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.
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.
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. Was there a “miscarriage of justice”?
By reason of the tender, to echo the words of Dowd J in R v Shorten [2004] NSWCCA 266 [27], the appellant clearly lost “a substantial chance of acquittal”. Was it, also, however, a “miscarriage of justice”?
As Birks (supra) affirms, ordinarily an accused person is bound by his or her counsel’s decision (see also Ignjatic v R (1993) 68 A Crim R 333, 336). That is subject to the overriding issue as to whether a miscarriage of justice had occurred.
As to that aspect of the matter two observations are pertinent. First, there is no doubt that counsel for the appellant took an egregiously inappropriate course. Why that was so, is, in large measure, due to his quite apparent unfamiliarity with the role of defence counsel. In that context the second observation is pertinent. It is clear that Mr Elmaraazey, once he had become familiar with the contents of exhibit 3 observed that there were inconsistencies in it with the prosecution case both as to an alleged assault on the child and as to the presence of a knife or knives. It is clear that Mr Elmaraazey did not know how to cross-examine the informant so as to establish the falsity of those allegations without referring to the statement itself and thought, incorrectly, that it needed to be in evidence for him to do so. Certainly s 44(2) (Evidence Act) would have permitted cross-examination about a statement made by Ms Hieser to the witness only if – (a) evidence of the representation has been admitted; or (b) the court is satisfied that it will be admitted.
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.
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.
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.
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) 154 CLR 563, 575).
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.
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.
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.
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. The appeal against sentence
Even if the conviction of the appellant had been allowed to stand, serious issues have been raised concerning the sentences imposed. It is noted that there was a plea of guilty to breaching a protection order and that plea would support a finding of breach of recognisance.
First, it was suggested that, taking account of the injuries sustained by Ms Hieser, and the assumption that they were the result of a “violent and prolonged” assault, to fix a penalty for common assault at the upper end of the range, was an error. Reference was made to R v De Simoni (1981) 147 CLR 383.
The second objection was to the imposition of a further sentence for the breach of recognisance in respect of a prior matter, the breach being constituted by the conviction for assault, of six months imprisonment. The error alleged was in proceeding to impose that sentence without any information as to the factual findings made in the original proceedings leading to the recognisance. The admitted breach of protection order could also have been relied upon as a breach of that recognisance.
Thirdly, it was submitted that his Honour Justice Tamberlin erred in that, though finding that the learned Magistrate had erred in taking account of lack of remorse, a plea of not guilty and the appellant’s demeanour as aggravating factors, he did not re-sentence the appellant. The seriousness of the assault
It is clear that her Worship, the sentencing Magistrate, did not err in regard to an assault by a man on his partner or ex-partner, particularly in the presence of a child of the relationship, treating it as serious and deserving of condign punishment. (See R v Bell [2005] ACTSC 123 at [31]).
However, the terms of exhibit 3, even had they been properly proved, appear to have elicited an allegation of assault the previous evening – Dylan’s got two bruises on his back because he [that is, the appellant] threw me over last night when I was holding Dylan.
It certainly appears that Ms Hieser was referring in exhibit 3 to two separate incidents which might well have produced bruising; one the night before, the other shortly before the statement to the informant was made. The only unequivocal allegation of recent violence was that “he [the appellant] just hit me in the face” on their return from the shops. It may well have been that she was alleging more than one blow but her answers were largely unresponsive. For example – Constable McCallum: How did he hit you, was it with a fist or an open hand? Ms Hieser: There’s knives under the couch.
It is not appropriate at this time to go further than to say that it was an apparent error not to attempt to distinguish between the violence allegedly inflicted the previous night and that, if any was so found, inflicted in the hours preceding the interview with the informant. To have assumed that all injuries resulted from the charged assault was not appropriate.
Her Worship did say – … those injuries were never tested. It was never tested except in submission that perhaps Ms Hieser might have caused these injuries to herself. She might have somehow bumped into a door and caused the bruise to her lip, or they might have been old injuries. That was never put to her.
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.
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.
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.
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.
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).
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.
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.
It is, however, unnecessary to consider that issue further. General
There was a further complicating factor. The appellant was subsequently convicted before Magistrate Somes of breach of a protection order. A two month sentence was imposed to commence at the end of the sentences we have now set aside. There was no appeal in respect of that sentence per se but its date of commencement must be re-calculated depending on the result of any re-hearing of the current matter. If the present matter is not to be re-heard then the commencement date may well be such that the sentence has expired.
That matter should be remitted for that limited purpose to Magistrate Somes once this matter has been heard and disposed of, bearing in mind in each case the impact of s 360 Crimes Act 1900 (ACT). I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Stevens v McCallum [2006] ACTCA 13

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