Bartlett v The Queen
[2017] ACTCA 60
•18 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Bartlett v The Queen |
Citation: | [2017] ACTCA 60 |
Hearing Date: | 6 November 2017 |
DecisionDate: | 18 December 2017 |
Before: | Mossop and Jagot JJ, and Robinson AJ |
Decision: | The appeal is dismissed |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – appeal against conviction – admissibility of tendency evidence concerning past violent conduct of the complainant – judicial directions |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 Evidence Act 2011 (ACT) ss 97, 101, 101A, 102 and 103 |
Cases Cited: | Bugg v Day (1949) 79 CLR 442 Nudd v The Queen [2006] HCA 9; 225 ALR 161 R v Lumsden [2003] NSWCCA 83 |
Parties: | David Bartlett (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr P Bevan (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Bevan and Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 56 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Refshauge ACJ Date of Decision: 13 October 2016 Case Title: R v Bartlett Court File Number: SCC 8 of 2016; SCC 9 of 2016 |
THE COURT:
On 10 October 2016, David Ian Bartlett, the appellant, pleaded not guilty to an indictment charging him that on 22 May 2015 at Canberra he intentionally inflicted grievous bodily harm on Mr Robbie Kollas (the complainant).
The jury acquitted Mr Bartlett of this offence but convicted him of the statutory alternative of recklessly inflicting grievous bodily harm upon Mr Kollas, under s 20 of the Crimes Act 1900 (ACT).
By a Further Amended Notice of Appeal, the appellant appealed against his conviction on the alternative count. There was no appeal against sentence.
Grounds of appeal
The grounds of appeal are:
(a)His Honour erred in refusing the appellant’s application to adduce tendency evidence concerning past violent conduct of the complainant, Robbi [sic] Jason Ashley Kollas.
(d)His Honour erred in refusing the appellant’s application to cross-examine the complainant, Robbi [sic] Ashley Kollas, on matters that could substantially affect the assessment of his credibility as a witness, and of his bad character.
During the course of the hearing of the appeal, counsel made an oral application to delete ground (d) and substitute another ground. This matter is returned to below.
Ground (a)
The appellant filed an application to adduce tendency evidence at his trial. The application was not dealt with prior to the trial commencing. It was determined only after Mr Kollas had given evidence and cross-examination had substantially commenced. At this point in the trial, in the absence of the jury, the trial judge heard further argument. The trial judge gave his ruling, dismissing the application. The cross-examination of the complainant was then continued before the jury.
On 22 May 2015, a car driven by the appellant hit the complainant, Mr Kollas, as the complainant was running across Newcastle Street at Fyshwick, a busy street consisting of two lanes in each direction divided by a median strip. Mr Kollas suffered injuries which amounted to grievous bodily harm. The Crown alleged that the appellant intentionally caused the grievous bodily harm and then immediately left the scene.
The incident was partly captured on CCTV and the images were before the jury. It was open to the jury to conclude that those images appeared to show the appellant in his car in the kerb-side lane suddenly accelerate and veer at an abrupt angle into the second lane, nearest to the median strip, and strike the complainant. The Crown alleged a motive for this incident. It was said that the appellant was upset or angry with a relative and co-worker of the complainant, Mr Peter Allen. The appellant had dealings with Mr Allen that day and on a previous occasion. On both of these occasions, the appellant was attempting to serve a court process upon Mr Allen.
According to the appellant, the complainant came “charging” across the road to assault the appellant and lunged at the car. The appellant panicked and drove off as quickly as he could. The appellant gave evidence that he did not intend or expect that his car would come into contact with the complainant. He said that the complainant jumped onto the bonnet of the car, that he feared an assault from the complainant and that this was why he rapidly departed. He gave evidence of a very serious assault upon him in 1977 by a stranger and also of two incidents concerning Mr Allen which occurred in the course of serving the court process.
There was not strong evidence that the complainant had shown any prior animosity towards the appellant. In cross-examination, the complainant said that he had met the appellant twice, over a period of 10 years, through his uncle, Mr Allen, who was living in a house occupied by the appellant. He denied being involved in a dispute between the appellant and Mr Allen. He said that, on that day, he told them both to leave the car yard because they were swearing in front of a customer. As to the suggestion of an assault, the complainant denied punching and threatening the appellant and denied that any other workmate had threatened the appellant on that occasion.
The appellant gave evidence that he was assaulted by Mr Allen in March 2016. He said that Mr Allen swung a punch at him that did not connect. There is a suggestion that the complainant was present, or involved, in this incident. There is also a suggestion that the complainant was present and involved in the incident at the car yard. We use “suggestion” in this context to convey that the evidence available contained internal contradictions and the questions were not put to the witnesses with any confidence by the appellant’s counsel.
The complainant said that, on 22 May 2015, he “jogged” across Newcastle Street. He gave evidence that it is a very busy road. He said that he was on his way to the service station on the other side of the road, to collect a car. He said that he did not see the car prior to the collision. It was not put to the complainant that he saw the appellant prior to crossing the road.
The appellant raised self-defence at trial. Counsel for the appellant told the trial judge, at an early stage in the trial, that “the issue of self-defence will be a live issue”.
The appellant relied upon two planks in his defence. At a conceptual level, the two planks appear inconsistent. The first plank asserted no intention to cause harm. If that failed, self-defence was relied upon. Implicit in the later position is the assertion of an intention to cause harm but with a justification recognised at law. This can be seen from counsel for the appellant’s final address to the jury. He told the jury:
Ladies and gentlemen, in conclusion I’d suggest to you that you will conclude that the Crown have failed to prove that Mr Bartlett intended to cause grievous bodily harm to Mr Kollas or was reckless about causing grievous bodily harm to Mr Kollas. If you come to that conclusion you’ll find Mr Bartlett not guilty of each charge. If you are [not] satisfied of either of those matters then I’d suggest that you conclude that Mr Bartlett did what [he] did in self-defence and that the Crown have not been able to rebut the suggestion that Mr Bartlett was in fact acting in self-defence, and if you so find, once again you will return verdicts of not guilty. Thank you, ladies and gentlemen. [T 248.7 – T 248.15]
The trial judge summed up to the jury in a similar way. He directed the jury:
Mr Bartlett gave evidence in his case and I remind you that you treat his evidence in the same way as any other evidence in this case. He denied that he had intended that his car collide with Mr Kollas. He said that Mr Kollas had collided with his car when he lunged or lurched at it after running across the road at him. Mr Bartlett said that he was afraid of Mr Kollas attacking him. His fear was because of a serious injury he had suffered at age 15 and which caused him to be afraid of being assaulted. He also said that he had been assaulted by Mr Kollas earlier in the year and felt when he saw him running across the road, while he and Mr Allen were having an argument, that he was going to be assaulted. You will recall that Mr Kollas denied that there was any such earlier assault. Mr Bartlett said that he felt he had to get away.
That raises the question of self-defence. Although it is called self-defence that is not a defence in the sense that Mr Bartlett has to prove to you that he was acting in self-defence. [T 265.10 – T 265.24]
The trial judge went on to give an unexceptionable direction on self-defence, in response to which there was no complaint.
The Tendency Application
The application was:
That the accused be permitted to adduce evidence in relation to incidents 1 and 2 outlined in the Notice of Intention to adduce tendency evidence dated 15 August 2016 to prove that the complainant Robbie Jason Ashley Kollas (‘Kollas’) has the tendencies described in that notice:
· To be quick tempered
· To anger easily
· To act violently towards others
· To resort to violence in response to arguments or disagreements
The two incidents were:
Incident 1 – maliciously inflicting grievous bodily harm and maliciously damage property
Incident 2 – aggravated enter dwelling house with intent to commit a serious indictable offence (affray) in circumstances of aggravation (armed with an offensive instrument).
Evidence of these two incidents was to be given by the tendering of paragraphs of the following judgments of the New South Wales Court of Criminal Appeal: R v Kollas [2002] NSWCCA 15 at [3] to [5]; and R v Kollas [2002] NSWCCA 491 at [9] to [15].
It is necessary to set out these paragraphs in full so that their relationship with the facts in issue can be properly considered.
Incident 1 was described at [3] to [5] in R v Kollas [2002] NSWCCA 15:
The events giving rise to these charges occurred on 23 December 1999. Mr Kollas was driving a vehicle in Willoughby. He was accompanied by his mother and half-brother, Luke Jones, who was younger. An incident occurred involving another vehicle. It was a vehicle used by the pizza shop in Willoughby Road for the delivery of pizzas. There was an exchange of abuse. The abuse was followed by what is commonly referred to as “tailgating”, that is, Mr Kollas driving uncomfortably close to the vehicle in front, the pizza shop vehicle.
That was conduct which the sentencing judge described as silly and unnecessary. Unfortunately the incident did not end there. Mr Kollas then drove his vehicle past the pizza shop on three occasions. On one such occasion he served towards the entrance of the shop. A number of young men, who worked at the shop, were standing on the footpath. There was an altercation. A bottle was thrown, apparently by Luke Jones. It struck one of the men. Mr Kollas got out of his vehicle. He had, according to witnesses, a club-lock, being a large metal object used to lock the steering wheel of a vehicle. Threats were made as the club-lock was brandished. Mr Kollas then got back in his vehicle and drove off. However, his purpose was not to put an end to the incident. Rather, it was to obtain reinforcements so that he might return to the pizza shop.
Mr Kollas went to the hotel where another brother, Jason Ross, and his stepfather were drinking. They and another man, who was also drinking at the hotel, then got into Mr Kollas’ vehicle. Mr Kollas drove back to the pizza shop. It is plain, as the learned sentencing judge found, that he was intent on revenge. What followed was described by the sentencing judge as “chilling”. And so it was. Judge Hosking gave a description of what happened in these words:
…the victim George Kanaan, a young man I think in his early twenties and of relatively slight build. Late in the afternoon of 23 December 1999 Mr Kanaan went to his place of part time employment, the Flying Pigs Pizza Shop in Penshurst Street at Willoughby to commence a work shift there. He was standing outside the shop minding his own business before he went inside to commence his shift. According to one witness, he was simply standing smoking a cigarette on the footpath adjacent to the front glass door of the pizza shop. Suddenly and without any warning to Mr Kanaan, the offender pulled up nearby in his old Holden sedan with three other men and a woman (who was in fact the offender’s mother, Fay Hines). One of the three other men was the offender’s half-brother, Jason Ross. The offender and the three men with him rushed towards the front door of the pizza shop and tried to get inside to attack the occupants of the shop. The occupants closed the front door to protect themselves but unfortunately for him, Mr Kanaan was still outside and unable to get into the door before his workmates closed it.
The offender and his male accomplices assumed (correctly) that Mr Kanaan had some connection with the pizza shop. In a highly agitated state they turned on Mr Kanaan, striking him with their fists repeatedly until he fell to the ground. At that time the offender was armed with a club-lock, that is to say a locking device to lock a car steering wheel. One of the offender’s accomplices was armed with some kind of weapon described by one witness as being like a tyre lever. Whilst on the ground Mr Kanaan was struck with the club-lock and the other weapon. In addition he was kicked to the head and body. To try to protect himself, Mr Kanaan assumed a foetal position and moved his hands and his forearms from his head to his torso and back again against the rain of blows and the kicks being directed towards him. Such was the savagery and duration of the attack upon him that his attempts to protect himself were in vain. He lost consciousness.
Incident 2 was described at [9] to [15] of R v Kollas [2002] NSWCCA 491:
On 27 January 2001 the respondent, Kollas, and the applicant, Mitchell, went to a flat in Albert Avenue, Hornsby which was occupied at that time by four adults, Fiona Stevenson, Peter De Wall, Earl Saunders and Imelda Saunders, as well as by six children aged between eight months and eight years. Two of these children were asleep and the others were watching a movie in the lounge room.
Kollas and Mitchell were accompanied in this journey by at least two other men, with whom they had been sitting around drinking that afternoon. At some stage their discussions turned to the possibility of visiting someone to obtain some “free drugs”, and to the circumstance that Kollas had been allegedly threatened by Fiona Stevenson and Peter De Wall for not having paid for some cannabis which he had obtained from them.
It was understood that the premises at Hornsby were an outlet for drugs, a circumstance doing no credit to those of the victims who were responsible for such activity but not a circumstance denying them the protection of the law against being the subject of a home invasion.
The offenders arrived at the subject premises at about 10.25 pm. Peter De Wall, who opened the door, was struck on the forehead by Kollas with a steel pole which he was holding. Another man struck him on the elbow with a piece of wood, after which Kollas again struck him with a steel pole. Kollas then turned his attention to Earl Saunders swinging the pole towards him several times. Although he endeavoured to block the blows with a chair he was struck on the wrist and chin after being distracted by a man holding a wooden bat.
Kollas struck the television with the steel pole and said to Fiona Stevenson “You want to kill me do you?” before striking her, with the pole, on the arm and head. Earl Saunders and Imelda Saunders were forced into the kitchen area with the children. One of the offenders threw a brass stand towards them. As he moved towards them Fiona Stevenson pulled him back. For her efforts she was punched to the head several times.
At this point the group began looking for Peter De Wall, who had made his way out to the balcony. Kollas yelled out to him “You want to fight me, do you want to fight me you gutless prick?” De Wall jumped off the first floor balcony and ran to a neighbour’s house where he phoned the police. Fiona Stevenson made a similar call from the flat.
Before the men left Mitchell demanded that they be given the drugs in the flat. Fiona Stevenson handed over, from the fridge, a quantity of cannabis which had been packed in two plastic re-sealable bags and which weighed in total 38.44 grams. Additionally, a video-recorder and a mobile phone were taken from the premises.
The tendency notice also stated:
Evidence of these facts will also be provided by tendering the criminal record for Robbie Kollas produced by the Australian Federal Police and the New South Wales Police to show that in addition to the convictions referred to above, Robbie Kollas also has a conviction for destroying or damaging property and a finding of guilt for assaulting an officer in the execution of their duty.
After expressing earlier provisional views concerning the application, the trial judge made his ruling in these terms:
Having given this matter some careful and anxious thought I’m of the view that the evidence should not be admitted. It seems to me that while there is the probability of it being tendency evidence the probative value is outweighed by the prejudice and I reject the application.
It will be noticed, as was pointed out in the Submissions of the Respondent, that the above passage contains an error. Section 101 of the Evidence Act 2011 (ACT) does not place this further restriction (“unless the probative value of the evidence substantially outweighs any prejudice effect it may have”) on the evidence sought to be tendered by the accused. That further restriction only applies to evidence sought to be adduced by the Crown. It should also be noted that the trial judge has not found, in the passage above, that the evidence will have significant probative value, as would be required under s97(1)(b) of that Act.
The question then raised, on appeal, is whether the evidence sought to be tendered will, either by itself or having regard to other evidence presented, have significant probative value. That requires the identification of its relevance to the facts in issue in the proceeding.
The first matter to note is that the appellant, on 22 May 2015, “wasn’t aware of his criminal history”. That is a reference to the complainant’s criminal history.
On appeal, after some refinement, counsel for the appellant put that the tendency evidence was relevant to the likelihood that Mr Kollas was, in fact, charging in a way that looked threatening to a person in the appellant’s position. The word “charging” was the characterisation attributed to Mr Kollas’ movements when he was running across the road. Counsel for the appellant asked rhetorically: “Does the person have a tendency to act that way?”
We do not find that the tendency evidence was relevant to the likelihood that Mr Kollas was, in fact, “charging” in a way that looked threatening to a person in the appellant’s position. Firstly, the conduct occurred about 16 years ago. Secondly, Mr Kollas was 22 or 23 years of age at that time. Thirdly, the fact in issue centres on the manner in which a person ran across a road. That is distinct from the four tendencies put forward in the application.
Even if we are incorrect in our assessment that the evidence is not probative of the fact in issue, we do not believe that the proposed evidence was significantly probative of that issue.
The Court is of the view that the evidence sought to be tendered as tendency evidence is not, even taken with other evidence in the case, of significant probative value and we dismiss this ground of appeal.
Ground (d)
Ground (d) of the Further Amended Notice of Appeal was expressed in the following terms:
(d) His Honour erred in refusing the appellant’s application to cross-examine the complainant, Robbie Ashley Kollas, on matters that could substantially affect the assessment of his credibility as a witness, and of his bad character.
At the hearing of the appeal, it was pointed out to counsel for the appellant that there were no questions which were disallowed by the trial judge and at no time did the trial judge foreshadow any disallowing of any questions. The trial judge ruled only upon the application to adduce the tendency evidence.
Counsel then applied orally for leave to substitute a new ground of appeal in lieu of ground (d) above. We directed written submissions on the question of leave.
The reformulated ground is as follows:
Due to trial counsel’s failure to cross-examine the complain[ant] on his prior criminal history the appellant lost the chance of an acquittal that was reasonably open to him.
It will be noticed that the reformulated ground is quite narrow. As noted above, the complainant’s “prior criminal history” consisted of the two convictions which are taken from the two judgments and a reference, in the tendency notice, to “a conviction for destroying or damaging property and a finding of guilt for assaulting an officer in the execution of their duty”. There are no details of these later matters in the appeal materials.
In Bugg v Day (1949) 79 CLR 442, Dixon J considered the issue of discrediting a witness at common law arising from a conviction for an offence. His Honour remarked, after reviewing the cases, at 467:
Scanty as is the material obtained to form a conclusion I think the better view is that at common law a conviction of a witness for an offence could not be used for the purpose of discrediting him if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in his character or trustworthiness as a witness of truth. Traffic offences cannot often fulfil this condition.
The restriction suggested by Dixon J was not supported by the majority, who held that convictions for any offences are admissible in relation to credit. His Honour’s remarks do, however, provide a useful guide to the process of reasoning involving convictions and credibility.
This position is now governed by the Evidence Act 2011 (ACT).
Section 102 of the Evidence Act 2011 (ACT) provides that: “credibility evidence about a witness is not admissible”. Credibility evidence is defined in s 101A of the Evidence Act 2011 (ACT). For present purposes, “credibility” includes truthfulness. Section 103 of the Evidence Act 2011 (ACT) then creates an exception to the credibility rule. It provides:
S 103 Exception – cross-examination as to credibility
(1)The credibility rule does not apply to evidence given by a witness in cross-examination if the evidence could substantially affect the assessment of the witness’ credibility.
(2)Without limiting the matters to which the court may have regard for subsection (1), it must have regard to –
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or happened.
The Crown case certainly depended, in part, on the evidence of the complainant. There was, however, other evidence, including CCTV footage. Accordingly, it was open to the appellant at trial to cross-examine the complainant as to his credit. The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his oath.
It was a forensic decision at trial not to cross-examine the complainant on his convictions. The trial judge had not ruled against this approach, nor against any proposed question. That he might have ruled against the approach is open to debate. The test under the Evidence Act 2011 (ACT) is “could substantially affect the assessment of the credibility of the witness”. The trial judge may have regarded the convictions as falling short of that test, owing to their age or content. That there can be divergent views about this evaluative decision can be seen from such cases as R v Lumsden [2003] NSWCCA 83.
The trial judge does not appear to have been informed as to the complainant’s conviction for destroying or damaging property or the finding of guilt for assaulting an officer in the execution of his or her duties.
It is clear that counsel for the appellant at trial knew that there was an ability to cross-examine Mr Kollas on his convictions. During the course of the argument on the application for tendency evidence, counsel said: “… and I will be seeking to essentially cross-examine Mr Kollas about those findings of fact…”
In the recent decision of R v Baden-Clay [2016] HCA 35; 258 CLR 308, the High Court reiterated at [48]:
Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue”.
In Nudd v The Queen [2006] HCA 9; 225 ALR 161, Gleeson CJ outlined the nature of the enquiry where the incompetence of trial counsel is alleged, at [9]:
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v R, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct. [footnotes omitted]
There was no attempt here to place before the appellate court evidence of the subjective reasons for the omission to cross-examine Mr Kollas on his convictions. The Court was informed, from the bar table, by appellant’s counsel that, having regard to the argument on the tendency application, trial counsel “could see the door was closed and left it alone”.
The Court does not know whether this was trial counsel’s reasoning process. What is revealed by the transcript is that, after the application was dismissed, cross-examination of Mr Kollas resumed on a new front. Mr Kollas was asked, on the basis of hospital notes, whether he told staff that he smoked more than 10 cones of cannabis a day. There was no objection to those questions and the trial judge did not intervene in any way.
The authorities make clear that the ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice, in the sense that the applicant lost a chance of acquittal that was fairly open.
At the trial, counsel for the appellant was alive to the possibility of cross-examining Mr Kollas on his criminal record. There was a further consideration of whether to embark upon that course. It would have been in the mind of trial counsel that Mr Kollas, as well as being a witness in the prosecution case, was also the person who had suffered grievous bodily harm by what the Crown alleged was a deliberate act; a proposition which appeared to have some support from the CCTV footage. It could be expected that the jury would feel some sympathy for Mr Kollas. It was open to counsel for the appellant to take the view that to cross-examine the complainant on his dated criminal record may have had a net negative effect, especially when the offences were not dishonesty offences which might rationally weaken confidence in his testimony.
The use of the convictions may have been seen as a pretext for discrediting a witness for the sole purpose of affecting the judgment of the jury upon the substantive issue. The Court does not know what trial counsel’s strategy was in respect of the cross-examination. There was at least one rational explanation for the path followed.
The Court is of the view that the decision to conduct the cross-examination in the manner in which it was conducted was within the discretion of trial counsel and did not result in a miscarriage of justice. Leave to rely upon this ground is refused.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Mossop and Jagot JJ, and Robinson AJ. Associate: Date: 18 December 2017 |
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