Walker v The Queen [2014] VSCA 177

1 I have had the advantage of reading, in draft, the reasons prepared by Osborn JA. I agree with those reasons and with the orders proposed.

2 Following a trial in the County Court at Geelong, on 15 August 2013 the appellant was found guilty by a jury of two charges of recklessly causing injury[1] (charge 2 and charge 7, being a statutory alternative to charge 4). The victims respectively were two women, Dale Maryann Watson ('Watson') and Vera Nicki Grozdanovski ('Grozdanovski'). Charge 2 was an alternative to a charge of intentionally causing injury[2] (charge 1) and charge 4 was an alternative to a charge of intentionally causing serious injury[3] (charge 3). The appellant was acquitted of charges 2, 3 and 4. The appellant was also acquitted of making a threat to kill (charge 5).[4]

3 On 30 August 2013 the appellant was sentenced to be imprisoned for three months and a community corrections order ('CCO') of 18 months' duration was imposed.

4 The CCO was cancelled on 6 November 2013 following an application made pursuant to s 48N(1)(a) of the Sentencing Act 1991.

1. There was a miscarriage of justice arising from the wrongful admission of [evidence of] the accused's bad character and the learned trial judge's failure to discharge the jury following that disclosure.
2. The learned trial judge failed to give a direction pursuant to s 165 of the Uniform Evidence Act [sic] or at common law in relation to the unreliability of the witnesses Dale Watson and Vera Grozdanovski.

6 Watson and Grozdanovski were in a relationship together. Both knew the appellant. Indeed, Watson had been in a relationship with the appellant some 15 years previously. About two weeks prior to the offences Watson had confronted the appellant in the street over rumours the appellant had allegedly been spreading about her. They had a fist fight and Watson bested the appellant.

7 The Crown case was that during the evening of the 27 July 2010 Watson and Grozdanovski were walking along the footpath of Robin Avenue, Corio, when Watson felt a push or thud from behind that almost knocked her over. When she turned, Watson saw the appellant standing behind her with another woman, Barbara Kennedy. The appellant moved in front of the victims. She was screaming 'come on, come on bitches, let's go'. Watson and Grozdanovski saw a knife blade protruding from the sleeve of the appellant's jumper that was covering her hand. The appellant had the knife pointed at them and was jumping around.

8 Watson felt her back getting warm and realised that she had been stabbed.

9 Grozdanovski moved between the appellant and Watson, but the appellant managed to again stab Watson in the left arm. The appellant also stabbed Grozdanovski to the left elbow, the back and the left loin.

10 The appellant then left the scene by car with Barbara Kennedy.

11 In a record of interview with police the appellant said that Watson and Grozdanovski attacked her on the street. She said that she did not have a knife and that she did not see anyone else with a knife. She stated that at one point Watson lifted her shirt claiming to have been stabbed, and the appellant saw blood. The appellant told police that she did not know how the injuries could have occurred.

12 Watson suffered a wound to the left side of her chest measuring one centimetre in diameter, and a wound to the left elbow measuring three centimetres in diameter. Grozdanovski suffered a wound to the right lower chest wall measuring one centimetre in diameter (with an associated cut to the liver), an incised wound to the left elbow and a wound to the left loin region (at the back between the bottom of the ribs and the pelvic bone) measuring half a centimetre in diameter.

The first ground - the appellant's bad character is revealed

13 An eye witness to the events of 27 July 2010, Richard Palmer, was called in the appellant's trial by the prosecution. That trial was a retrial, a previous jury having been discharged without verdict when a witness other than Palmer disclosed the appellant's criminal history. While cross-examining Palmer about background matters, defence counsel put to him that the appellant previously had been his girlfriend. That provoked the following answer, which was largely unresponsive and undoubtedly illegitimately prejudicial: 'That's correct, I was going out with her. In 1998 she went to gaol and she come (sic) out hating blokes.'[5]

14 Palmer then, in another unresponsive answer, said that he had 'hooked up' with a woman who cut his throat,[6] and it had to be made clear that it was not the appellant who had cut his throat. (This particular piece of evidence could not have been prejudicial to the appellant, but shows that the witness was not inclined to restrict his evidence to relevant material.)

15 Shortly later in his cross-examination Palmer appears to have become agitated. The judge intervened. Palmer then volunteered, quite unresponsively to anything that had been said to him, that his dogs had been poisoned, his car had been 'smashed up' and his house had been 'shot at'. In context, it was open to conclude that Palmer was conveying that these things had happened to him because he was a witness against the appellant.

16 Counsel for the appellant made an application to discharge the jury at the next break in proceedings, but that application was opposed by the prosecutor.

17 In refusing the application, the trial judge expressed her 'concern' that as a result of 'an unresponsive answer' it was revealed that the appellant 'had been in gaol, but it was specific to 1998, which [was] 15 years ago'. Acknowledging that it was her role to ensure a fair trial as far as she was able, and after 'considering this very carefully', the judge was of the view that a high degree of need to discharge the jury had not arisen. Her Honour said:

[T]he reference to the accused being in gaol was specific to 1998, that is 15 years ago. It fell from a witness who was at the height of explaining his own troubles and I think, in his various outbursts and unresponsiveness, will have caused the jury to categorise his evidence in a particular way, and there is no reason they would focus on that part as opposed to a whole lot of other matters that came out.

18 The appellant submits that this Court cannot be satisfied that the disclosure of the appellant's previous imprisonment could not or did not in any way influence the reasoning of the jury in their deliberations. More particularly, the appellant relies on the following combination of circumstances:

(a) the disclosure of the appellant's bad character was coupled with statements made regarding alleged violence and intimidation in respect of being a witness in the proceeding;

(b) the appellant was the only person charged or alleged to have been involved in the assault so that the statements that Palmer had been subject to violence and intimidation as a witness bore directly on the appellant;

(c) those statements arose from discussion with the trial judge in front of the jury and could not be addressed without further emphasising them;

(d) the disclosure that the appellant had not simply had prior convictions but had been imprisoned (for an unknown period) tended to show that the appellant was the sort of person who may be involved in criminal violence;

(e) the disclosure could not be addressed as the appellant did indeed have prior convictions for violence;

(f) one of the issues in the trial was whether the appellant had engaged in a 'revenge' attack or had been confronted by the complaints; and

(g) there was no judicial direction given addressing the comments nor could there have been as it could only have emphasised them.

19 The respondent submits that it was open to the trial judge to find that in this instance there was no high degree of necessity to discharge the jury and that this Court should hold that the disclosure to the jury of the appellant's prior imprisonment could not or did not in any way influence the jury's deliberations.

20 The respondent takes issue with the extent and nature of the potential implications flowing from the admissible evidence. It is submitted that the application to discharge was founded upon the statement about imprisonment alone and not the subsequent statements concerning intimidation and damage suffered by the witness. Next it is pointed out that the reason the appellant was imprisoned 15 years earlier and the term of that imprisonment were left unclear whilst on the other hand it was plain that the imprisonment occurred many years earlier.

21 It is further submitted that the fact that the jury discriminated between the charges against the appellant and acquitted her of intentionally causing injury, intentionally causing serious injury, recklessly causing serious injury and making a threat to kill renders it unlikely that the jury were materially prejudiced by the evidence.

22 Lastly, it is submitted that the fact that the prejudicial statement was made some six days before the jury retired to consider its verdicts, coupled with the fact that the matter was not mentioned further in the trial, render it unlikely that the jury were affected by the statement.

23 In Crofts v The Queen Toohey, Gaudron, Gummow and Kirby JJ said:

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.[7]

24 In R v Halliday[8] the Court of Appeal confirmed that there is no general rule that a jury is to be discharged when evidence of bad character is inadvertently placed before them. The question to be considered in each case is whether the circumstances give rise to a high degree of necessity for the jury to be discharged.

25 That said, it remains true that the law has long recognised the prejudicial effect of evidence of prior conviction and bad character and the risk that such evidence will render a trial unfair because it invites the jury to engage in propensity reasoning.[9]

26 In Halliday, the jury were inadvertently shown a list of the appellant's prior convictions. Having regard to the nature of those convictions, the Court of Appeal concluded that it was unable to accept the contention that their disclosure to the jury could not or did not in any way affect the jury's deliberations. The Court said:

In the particular circumstances of this case, we consider that the jury should have been discharged after it was discovered that the applicant's prior convictions had inadvertently been placed before them. Notwithstanding the careful directions by his Honour to the jury to put out of their minds those convictions as irrelevant, the risk that one or more might not have been able to do so was too great to allow the trial to continue. Any such risk could easily have been obviated by the simple expedient of discharging the jury, and starting the trial afresh.[10]

The significance of evidence of bad character in the circumstances

27 In the present case the defence depended upon raising a reasonable doubt as to the truth and reliability of the evidence of the Crown witnesses.

28 The defence relied upon prior inconsistent statements of Walker, Grozdanovski and Palmer as demonstrating unreliability. It further attacked the credit of these witnesses on a series of bases. These were carefully and fully summarised by the trial judge in her charge as follows.

First, Dale Watson. The defence argues that you should not accept her version of events for a number of reasons and they are following. She has a history of animosity towards Julie Walker, including the fight a couple of weeks earlier, and that fight, the prosecution also relies upon. She had an ongoing grievance against Julie Walker about spreading what she said were untrue rumours about her. It is also put that she has lied to cover up the real version of what started this incident, being what is argued to be the accused's version that she told the police - that is that Dale Watson and Vera Grozdanovski were the aggressors, who confronted her in the street and started a fight.

Next it is argued that Dale Watson's version has not been consistent in its detail, and an example is about her talking of a mobile phone involved in the sequence of events of what happened when she was first hit from behind, and says she turned around and saw the accused. You will recall she agreed that she had not raised that detail of the mobile phone until the day before she gave evidence here. She said that what happened was that after she felt a push and shove from behind she spun around, saw Dale Watson. In the process of that, she had been pushed forward and dropped her mobile phone and, when she turned around, she saw - not Dale Watson, sorry - she saw Julie Walker and Julie Walker had already picked up the phone and said, 'Nah, nah, nah, nah', and threw it back at her, or in her direction, and it fell and she had to pick it up, and by the time she had picked it up, Julie Walker had moved around to be the other side of where the women were in front of them on the pavement. She agreed she had not previously raised that detail and said that that was because she had not thought this trial was about her mobile phone, but rather about how she and her partner came to be stabbed.

Another argument the defence raises as to why you should not accept her evidence is that she has a criminal record of offences of dishonesty and, specifically, of deception. She admitted the most recent of those charges being heard by a magistrate in the Magistrates' Court in April 2007, for deception, and she admitted that a couple of years prior to that there was one for five allegations of deception that she had pleaded guilty to in a Magistrates' Court; that she had a conviction in November 2003 for forging prescriptions and that, back in 1999, she had faced and pleaded guilty to two charges of stating a false name to police. She did not dispute, although she said she could not remember, an even earlier charge of deception in 1994. Mr Thomas argues that, with this history of deception, you should regard what she says about what happened here as one more step in that deception and her willingness to lie, including to police, about matters to her own advantage.

Mr Thomas asked, and I assume rhetorically, whether you would buy a used car from Dale Watson. That may have been a colourful way of putting the question that you need to consider here. Can you be sufficiently satisfied that she is telling the truth about this incident to rely on the essential parts of it that she gives evidence about?

30 Secondly, the judge summarised the defence case with respect to Grozdanovski as follows:

Next, there is Vera Grozdanovski and, again, there is a real issue raised by the defence about whether you can rely on or find credible anything she says. The arguments put by the defence here are that she also has a history of animosity to the accused. That is in support of her partner, Dale Watson, but it has involved her being present at the confrontation that had happened some two or two and a half weeks earlier. And you also have the evidence of her returning to her partner after being, with the rumour - well, more than the rumour - that she says she was told by the accused that her partner, Dale, was working as a prostitute, and she went back, and she took that as an accusation against her partner. So it is put she also has a history of animosity towards the accused, and an obvious interest in supporting her partner, Dale Watson.

It is put that she has given different versions previously to what they were here and that ultimately there are several versions she has given which should cause you to doubt that any one of those versions can be relied upon. I will take you to those specifics under the charges.

Through cross-examination of her, it was suggested that her insistence that she did not get the can of Bourbon until after she was stabbed makes no sense and is inconsistent with the photos and Mr Ubergang's evidence about the extent of blood on the pavement and where it was, and it does not fit with Mr Palmer's evidence of holding towels to her wounds afterwards and him trying to calm her down, sitting in the gutter waiting for the ambulance and police. In particular, it is said it makes no sense as there is no indication that the blood went beyond the Foodworks store, or as to how or why she would have been able to, or allowed, by those trying to look after her, to walk up as far as the liquor store to buy the can of Bourbon.

31 Thirdly, her Honour summarised the defence case with respect to Palmer as follows:

Richard Palmer, as a witness, is also argued by the defence to be unreliable and that you should not rely on his evidence. The defence argues that he should not be seen as an independent witness, and should not be believed when he says he saw the accused with a knife slashing at Nicki, or Vera. It is also submitted that according to all the other versions he is wrong about where he says the women, that is Dale Watson and Vera Grozdanovski, were coming from - that is across the road towards the chemist - and you should not believe him about that and, therefore, not that he saw and heard them calling out to someone on the pavement.

In cross-examination he was tested about who he called friends. At first he said he regarded all the people involved as friends. Then it turned out that he regarded 'friendship' as the same as 'acquaintance' and pointed out none of them had he invited home to have a cup of tea and talk about things. He had different histories with each of them, but it turned out some of those histories involved some unfavourable memories, including that Barbara Kennedy had had a confrontation, he said, with a neighbour of his in his flats, and that he had come out and intervened and as a result she hit him on the head with a bar.

It was at this point it was put to him that - or this arose from when it was put to him that he had previously said at a previous hearing that she had not visited his home. He said that is not inconsistent. He had never had her in his home, in his flat, but there had been this confrontation when he had gone to the neighbour's.

It also was said that he has a history with the accused, Julie Walker. He agreed that back in 1998 he had a relationship with her. Mr Thomas suggests that the last thing you might want as a so-called honest witness is an ex-partner. You will also find that in her record of interview, Julie Walker says that she did know Richard Palmer - he had tried to gouge her eyes out. I think that is question and answer about No.100. He did not agree to that when it was put to him, but the defence argument is that there was animosity between - or enough here that you should take into account why he might be likely to have a grudge against the accused and not to be credible in giving evidence about her.

Finally, it is said by the defence that a lot of what he says is him making assumptions, and whilst he had originally at a previous hearing said that he saw her, the accused, stab Vera in the arm near the elbow, he said here that he agreed - sorry, he ultimately said previously and agreed here, that that is an assumption he made, because, although he did not see the knife hit the arm, he had seen the lead-up to it, he had seen the confrontation and he insisted that he saw a blade protruding from the pulled down sleeve of Julie Walker.

Finally, on what is said to be doubtful in his evidence, is that whilst he says he assumed and believes from what he saw that Julie Walker had stabbed Vera Grozdanovski, he did not see any blood on the blade that he assumed had just been used to inflict injury on Vera or Nicki Grozdanovski.

32 In my view the evidence that the accused had been imprisoned albeit some 15 years before was materially prejudicial to her because:

(a) it was coupled with an allegation that her character had changed during the imprisonment, which might reasonably be thought to imply the imprisonment was of more than nominal duration;

(b) it blackened her character in circumstances where criminally bad character might be thought to lend credence to both the 'vengeance' motive put forward by the Crown and the criminal violence of the attack alleged against her;

(c) it invited speculation in circumstances where other evidence, and in particular the evidence of intimidation of Palmer, raised a flavour of ongoing criminal conduct with elements of violence;

(d) it raised a circumstance which favoured the prosecution in a case where the jury were required to balance the evidence relating to a whole series of circumstances in order to reach the conclusion that they were satisfied beyond reasonable doubt of the appellant's guilt; and

(e) it raised a circumstance adverse to the appellant in a case which was not persuasive of the more serious offences charged and in which it cannot be said that conviction was inevitable.

33 In turn no direction was given to the jury to disregard the evidence or treat it as irrelevant. As the appellant submits, this is perhaps not surprising as to return to the subject would have given it emphasis. Nevertheless, it follows that the risk which I have identified remained uncorrected - namely the risk that the jury could or would be improperly influenced by the evidence of prior imprisonment.

34 That risk persisted despite the fact that, as the judge noted, the evidence was embodied in otherwise colourful evidence of the witness Palmer relating to himself. It also persisted despite the fact that the trial continued for some days thereafter before the jury retired to reach its verdicts. In my view, it resulted in a substantial miscarriage of justice.[11]

35 In all the circumstances I would allow ground 1.

36 As to ground 2, the appellant relied on the fact that Watson had a number of prior convictions for obtaining a financial advantage by deception and giving false names. Watson also accepted that she had been a heroin addict (though she denied using drugs around the time of the incident). Moreover, there was a history of animosity between the accused and Watson, with (on Watson's version) the appellant having spread rumours that Watson was a prostitute. This had culminated in a physical fight about a month earlier.

37 Grozdanovski was, and continued to be, Watson's partner. She had been present when the earlier physical fight had occurred and was said to have been involved.

38 As will be apparent from the extended passages from the charge which I have set out above however, the judge nevertheless gave the jury detailed directions with respect to the defence arguments bearing on Watson's suggested unreliability and their evidentiary basis.

39 The respondent submitted that, in those circumstances, any concerns that might have 'bedevilled' the evidence of these two witnesses 'would have been obvious to the jury and not required any warning given with the authority of the judge's office in order to avoid a perceptible risk of a miscarriage of justice'.

40 The appellant submitted that a warning was required in relation to the evidence of Watson both at common law and under s 165 of the Evidence Act 2008. It was submitted that s 165 'neither abolishes the need for a warning at common law nor limits the categories of evidence in which it is appropriate to give a warning under the section'. Evidence from a witness may attract a warning at common law where the witness has a prior criminal record or can be considered to be part of the criminal milieu, has a proven history of dishonesty or has a hostility towards the accused. It was submitted that the combination of these three aspects of Watson's evidence resulted in a situation which required a warning. Although the trial judge summarised the evidence and defence arguments for the jury, relying upon what was said in Faure,[12] the appellant submitted that the judge doing so 'did not obviate the need for a warning carrying with it the weight of the judicial office'.

41 The appellant conceded that the need for a warning with respect to Grozdanovski was 'less pronounced' than with respect to Watson, but nonetheless it was argued that 'her loyalty to Watson and her involvement in Watson's history of animosity to the accused nevertheless required a warning'.

Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required.[13]

43 In my view, this was not such an exceptional case. The matters affecting the credibility of the Crown witnesses were explored in full in evidence and in final address. They were in turn carefully highlighted in the judge's charge. In my view, there is nothing in ground 2.

44 The appellant has served the three months' imprisonment imposed upon her on 30 August 2013. Further, as I have said, the CCO imposed upon her on charge 2 was cancelled on 6 November 2013.

45 This Court must set aside the convictions the subject of appeal pursuant to s 277 of the Criminal Procedure Act 2009 and the question arises whether it should order a new trial pursuant to s 277(1)(a) or enter a judgment of acquittal pursuant to s 277(1)(b).

46 In Director of Public Prosecutions (Nauru) v Fowler[14] the High Court held that in exercising the relevant discretion an appeal court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify conviction and secondly any circumstances that might render it unjust to the accused to stand trial again whilst recognising the public interest in the proper administration of justice.

47 Obviously enough it will not be just to remit a matter for retrial if a fair trial cannot be had. In turn the question of whether a fair trial can still be had will turn on all the circumstances of the case.[15]

48 In the present case, the admissible evidence led at trial did justify conviction and a retrial would not be unfair procedurally. In the ordinary course the decision whether to continue a prosecution in such a case is a matter for the Executive not the Courts.[16] This division of powers constrains the proper exercise of this Court's discretion.

49 There are, however, a series of circumstances which taken together support the view that the matter should proceed no further. First, there have already been two trials. Both have miscarried through no fault of the appellant. The trial process was also plainly highly stressful to the witnesses involved including, in particular, Mr Palmer.

50 In addition, it is now four years since the events forming the basis of the remaining charges against the appellant. The appellant has served the entire sentence imposed upon her and if a third trial were held it could not sensibly result in the practical imposition of any further or other punishment upon the appellant.[17]

51 In Dyers Gaudron and Hayne JJ, having adopted the reasoning of Callinan J for rejecting the argument that the evidence led at trial should have left the jury with a reasonable doubt as to guilt, said:

In these circumstances, it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal.[18] To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further.[19]

52 Callinan J also concluded that it was for the Director to decide whether in all of the circumstances there should be a retrial or not.

53 In my view, the same conclusion must flow in the present case, subject to any concession by the respondent that a verdict of acquittal is appropriate.[20]

54 In so concluding, however, I would emphasise that it is strongly arguable this matter should proceed no further. As McHugh J put it in Longman v The Queen[21] in terms repeated by the majority of the Court in Crofts v The Queen:

In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.[22]

55 Subject to these observations, I would allow the appeal, set aside the convictions on charges 2 and 7 and order a new trial.

[1] Crimes Act 1958 s 17.

[2] Ibid s 18.

[3] Ibid s 16.

[4] Ibid s 20.

[5] Palmer had not been previously warned or directed not to mention the appellant's prior convictions or imprisonment.

[6] The transcript records the answer that his 'friend' was cut. It seems tolerably clear that this is a transcription error, and the witness said that his 'throat' had been cut.

[7] [1996] HCA 22; (1996) 186 CLR 427, 440.

[8] [2009] VSCA 195; (2009) 23 VR 419 (Buchanan, Ashley and Weinberg JJA) ('Halliday').

[9] R v Knape [1965] VicRp 63; [1965] VR 469 ('Knape'). The evidence there in issue was similar to that in issue in the present case, namely the inadvertent statement by a witness: 'I met him at Bendigo Training Prison'.

[11] The appeal is not against the trial judge's ruling but against the conviction: Maric v The Queen (1978) 20 ALR 513, 520; Knape 473. See too Halliday.

[12] DPP v Faure [1993] VicRp 87; [1993] 2 VR 497, 504.

[13] [1997] 1 VR 593, 606.

[14] [1984] HCA 48; (1994) 154 CLR 627.

[15] Cf Tuckiar v The Queen [1934] HCA 49; (1934) 52 CLR 335; R v Bartlett [1996] VICSC 47; [1996] 2 VR 687 ('Bartlett'), 699 (Winneke P).

[16] Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 ('Dyers'), 297 [23] (Gaudron and Hayne JJ), 317 [88] (Kirby P in agreement on this principle), 331 [134] (Callinan J).

[17] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520; Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 213; Bartlett 699 (Winneke P).

[18] See, eg, Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115.

[19] Dyers 297 [23] (Gaudron and Hayne JJ) (citation in original).

[20] Cf Carrot v The Queen [2013] VSCA 90.

[21] [1989] HCA 60; (1989) 168 CLR 79, 109.

[22] Ibid, cited in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 452.