Hogan v Rigby - [2020] NTSC 25

CITATION:Hogan v Rigby [2020] NTSC 25
PARTIES:HOGAN, Gavin
v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 41 of 2019 (21825347)
DELIVERED:  28 May 2020
HEARING DATES:  15 and 22 May 2020
JUDGMENT OF:  Hiley J
CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Duty of prosecutor to disclose relevant material to defence – Relevant material includes a Statutory Declaration made by the accused to the police – Statutory Declaration referred to during recorded interview with police – Miscarriage of justice – Appeal allowed and matter referred back to Local Court
Local Court (Criminal Procedure) Act 1928 (NT), s 177(2)(f)
Bradshaw v The Queen (unreported) WA Court of Criminal Appeal No 142 of 1996 13 May 1997, Clarkson v DPP [1990] VR 745, Cooley v Western Australia (2005) 155 A Crim R 528, Jones v The Queen (1989) 166 CLR 409, Mallard v R (2005) 224 CLR 125, Mraz v The Queen [No 1] (1995) 93 CLR 493, R v Reardon (No 2) (2004) 60 NSWLR 454, R v Ward (1993) Cr App Rep 337, Singh v The Queen [2019] NTCCA 8, The Queen v Apostilides (1984) 154 CLR 563, The Queen v Nguyen [2019] NTSCFC 37, TKWJ v The Queen (2002) 212 CLR 124, referred to
REPRESENTATION:
Counsel:
Appellant:L Nguyen
Respondent:  N Loudon
Solicitors:
Appellant:-
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Hil2004
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hogan v Rigby [2020] NTSC 25

No. LCA 41 of 2019 (21825347)
BETWEEN:

GAVIN HOGAN

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 28 May 2020)
Introduction

On 12 September 2019 the Local Court sitting at Borroloola found the appellant guilty of two charges, one of which was for committing an aggravated assault upon Shaun Evans some time in the evening of 11 May 2018.[1] The assault was found to have involved the appellant’s use of a picket, which amounted to excessive force.
Initially the only ground of appeal was that the finding of guilt was “unsafe and unsatisfactory (unreasonable).”[2] Subsequently, leave was sought to add another four grounds of appeal, namely:
Ground 2: The Prosecution failed to disclose to Defence Counsel, prior to the hearing, the existence of a police witness statement made by the Appellant on 7 June 2018, in accordance with the Prosecutor’s duty to disclose all relevant material.
Ground 3: The Prosecution failed to call all relevant witnesses in accordance with its obligation to call all witnesses whose evidence was necessary to give a complete account of material events.
Ground 4: The Prosecution deprived the trier of fact the opportunity to hear the Appellant’s full account of events relevant to Count 1, when it adduced at Hearing, a Record of Interview with the Appellant made on 7 June 2018, without, at the same time, adducing the Appellant’s police statement dated 7 June 2018, being a statement to which the Appellant referred in his recorded interview, when responding to allegations concerning Count 1.
Ground 5: The Learned Judge erred in determining that the Prosecution had “negatived” defensive conduct to the criminal standard of proof for Count 1, having failed to consider the entirety of the defendant’s account of events, as constituted by his electronic record of interview with police made on 7 June 2018 together with a police statement made by the defendant that same day – which statement the Appellant had, at his recorded interview, incorporated by reference, in his responses to allegations concerning Count 1.
The “police statement” referred to in Grounds 2, 3 and 5 was a Statutory Declaration declared by the appellant on 7 June 2018 at the Borroloola Police Station (the Statement) before Acting Sergeant Hartshorn. The Statement comprised 25 paragraphs, 10 of which described various altercations at the Mara Camp on the night in question.[3] Later that day the appellant participated in a tape-recorded interview at Borroloola Police Station conducted by Acting Sergeant Hartshorn (the EROI). Although the Statement was referred to in the course of the EROI, by both the appellant and Acting Sergeant Hartshorn, it was not attached to the EROI or otherwise expressly incorporated as forming part of the EROI.
It is common ground that the Statement was not disclosed or provided to the appellant or his lawyers prior to or during the hearing (Ground 2). Indeed his lawyers did not become aware of the Statement until it was produced later by a prosecutor in another matter.[4]
Counsel for the appellant also contended that having decided to tender the EROI the prosecutor should also have tendered the Statement (Ground 4). Ground 3 relates to the fact that the prosecutor did not call as witnesses some people who the appellant had identified as also having been present during the relevant altercations. The main basis of Ground 5 is that the judge did not have all relevant evidence before her, in particular the Statement, and was therefore not in a position to properly determine the issue of self-defence.
Unfortunately, the time allocated for the hearing of the appeal was not sufficient and the appeal had to be adjourned in order to complete oral submissions in relation to Ground 1. However, both parties had completed their arguments in relation to the other grounds. As I had reached a firm conclusion in relation to Ground 2, both as to its merits and disposition, I informed the parties that I proposed to allow the appeal and remit the matter to the Local Court for rehearing.
I considered there was no point in the parties incurring the further costs and delays associated with arguing Ground 1. I also considered there was no utility in the Court determining that and the other grounds and that even if one or other of those grounds was made out there would be no different outcome, relevantly an order for acquittal. However, counsel for the respondent drew my attention to the High Court’s decision in Jones v R[5] which was to the effect that an appellate court is required to hear and determine each tenable ground raised which argues in support of a verdict of acquittal.
On 22 May I quashed the conviction on the basis of ground 2 and announced that I would be remitting the matter to the Local Court for rehearing. As counsel for the appellant indicated that the appellant would be seeking indemnity costs, I adjourned the matter to 27 May for hearing of that issue.[6] In the meantime, counsel for the appellant announced that in light of my orders in relation to ground 2 the appellant was withdrawing the other four grounds. These are my reasons for allowing the appeal.
Relevant facts
During the evening of 11 May 2018 there were a number of altercations between a large number of people at Mara Camp, at Borroloola.[7] The appellant referred to a number of these altercations in his Statement.[8] A number of the other participants in those altercations were also prosecuted and convicted for their involvement in one or other of those altercations.[9] These included Seborne Timothy,[10] one of the witnesses called in the prosecution of the appellant.
Counsel for the appellant says that the existence of the Statement only came to light in early 2020 when the appellant was subpoenaed to give evidence in the prosecution of Alistair Evans regarding an assault on the appellant on 6 June 2018.
In his Statement the appellant said that late in the afternoon of 11 May 2018 he, his wife and their five children had been fishing. On their way home they stopped at the house at Mara camp occupied by Jason and Sharon Green. The appellant says that he saw Simon Ellis forcing his way through a number of people to get to his girlfriend Kaitlin Green. He says he saw Simon punch Kaitlin with his right fist and Kaitlin fall to the ground. Jason Green got up and confronted Simon about hitting Kaitlin. Simon then punched Jason, swore at him and called him to come out to fight on the road. The appellant then said:
8. I followed Jason out to the road, Jason and Simon has a fight. Hell broke look with everyone out on the road. I saw Shaun EVANS, Kellyco and Seborne out the front of Simon’s house which is the back of Shaun EVAN’s house.
9. Seborne ran out with a spear, the spear was about two meters long and had a blade on the end of it. Seborne aimed the spear straight at me and threw the spear at me, the spear went close to my body and I tried to stop it with my hands. The spear cut my right hand near my thumb and cut under my left arm. The cuts bleed (sic) for a while, the cut on my hand was deep. I attended the doctors to have it fixed.
10. I turned around and saw Seborne, Kellyco (not sure of real name), Shaun EVANS and one other man running straight at me and all four started to punch me all over including my face and body. I tried to fight back at them to protect myself. I ended up on the ground. We were fighting all the way around to the side of Shaun’s place, I tried to walk away and get home to my place. Jason GREEN and Daniel GREEN and one other person came over to help me, they had to fight their way in to get to me. There were other people there as well but I’m not sure who they were. Someone grabbed my shirt and pulled it over my head and I was being punched again.
11. I got back onto my feet and I saw Seborne throw a large rock, it was about the side of a softball. The rock was coming at my head. I turned my head as a reaction and the rock hit me in the temple, I can’t remember anything after that. I ended up at the hospital but I can’t remember how I got there.
The rest of the Statement, another 14 paragraphs, concerned the assault on the appellant by Alistair Evans, on 6 June 2018, the day before he made the Statement and participated in the EROI.
The prosecution case was that the appellant and Shaun Evans had engaged in a “fair fight” with their fists until the appellant picked up a picket or a bar and struck Evans with it on the forehead, causing Evans to fall to the ground and being knocked out. The judge found that there were two witnesses who saw a picket strike Shaun Evans: Seborne Timothy, and Shaun Evans’ wife, Priscilla Ellis. In his evidence, Seborne Timothy said that the appellant had been angry and wanted to fight someone. He started to swing at Shaun Evans and Shaun fought back and “got the best of him”. The appellant was on the ground. The appellant picked up the picket and threw it at Shaun from some three or four feet away.[11] Priscilla Ellis said the appellant was holding the picket with both hands when he struck Shaun Evans. The judge found that the appellant did strike Mr Evans with a picket and that the introduction of the picket in that situation was excessive. Accordingly, defensive conduct was negatived.[12]
The prosecution case, and the evidence of some of its witnesses, was that the appellant’s assault on Shaun Evans occurred before Timothy Seborne’s attack on the appellant with the spear. However this sequence is different to that described by Juanitina Pluto, who was sober at the time, which was that Seborne Timothy threw the spear at the appellant before the other events took place including the altercations between the appellant and Shaun Evans.[13] Also, Seborne Timothy agreed with defence counsel that he “started the trouble” by throwing a spear at the appellant hitting him in the arm, then punching him to the ground.[14]
Although the appellant did not say anything in his Statement about attacking Shaun Evans with a picket, his version of the sequence of events was different to that advanced by the prosecution and consistent with that evidence of Juanitina Pluto and Seborne Timothy. He said that Shaun Evans, Kellyco and Seborne Timothy were out on the road, Seborne Timothy attacked him with the spear, the three of them and another man chased him and punched him and he ended up on the ground, Jason Green and Jason Green came over to help, and Seborne Timothy then threw a rock and hit him on the head. If that version was correct the assault on Shaun Evans is likely to have happened after the spearing and the chase and assault by the four men, one of whom was the complainant, Shaun Evans.
The sequence of those events would likely have been relevant to the issue of self-defence, a main issue at trial.
Ground 2
In her submissions counsel for the appellant identified the relevant principles and authorities concerning the obligations of a prosecutor to disclose all relevant materials to the accused. Counsel for the respondent did not take issue with those contentions and conceded, rightly, that the appellant or his lawyer should have been provided a copy of the Statement by those prosecuting the case. Counsel contended however that this failure on the part of the prosecutor did not amount to a substantial miscarriage of justice within the meaning of s 177(2)(f) of the Local Court (Criminal Procedure) Act 1928 (NT), and that the appeal should be dismissed. On the other hand, counsel for the appellant contended that I should quash the conviction and find the appellant not guilty of the charge.
It is well established that the prosecution must disclose to the defence all material that is available to it that is relevant or possibly relevant to any issue the case.[15] In R v Reardon (No 2)[16] Hodgson JA held that:
… the prosecution must disclose documents which are material … documents are material if they can be seen on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case; or (c) hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either.
(His Honour’s emphasis in italics)
The duty to disclose relevant evidence includes an obligation to make enquiries, particularly of police who may have been involved in the matter. See for example Malcolm CJ (Pidgeon and Owen JJ agreeing) in Bradshaw v The Queen[17] at p 11, quoted in Cooley v Western Australia at [57]:
It was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation: Archbold, para 4.268. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel: R v Ward (1993) Cr App R. I accept these submissions. In such a case, however, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice: Clarkson v DPP [1990] VR 745 at 755 per Murphy J; and see The Queen v Apostilides.
The Statement was clearly “relevant or possibly relevant” to issues in the case against the appellant. Although it did not contain any reference to the picket it contained important material that related to the alleged assault, and in particular to events immediately preceding the assault such as Seborne Timothy’s throwing of the spear and the appellant being chased and punched by Shaun Evans and three others. It should have been disclosed.
Indeed in her written submissions counsel for the respondent appears to concede the importance of the Statement. At [21] counsel stated:
The Appellant in his statutory declaration provides a version of events which exculpates him from the offending conduct. It is self-serving and not deemed reliable by the prosecutor, otherwise the prosecution would have accepted what the appellant said and not proceeded against the appellant for the assault on Shaun Evans.
I have no reason to doubt the contentions by counsel for the respondent that the Statement was not in the possession of the prosecutor at the time of the hearing and that the prosecutor was not aware of its contents. As counsel pointed out, in a busy bush setting the prosecutor relies on local police to provide the brief.
However, the prosecution brief did include two police documents which referred to the Statement. One was the statement of Constable Sarah Mitchell. She said that she and Acting Sergeant Hartshorn attended the Borroloola Clinic on the morning of 7 June 2018 and spoke to the appellant about the assault on him by Alistair Evans the day before. Acting Sergeant Hartshorn asked him if he would provide a statement about that. He was also told that police “needed to speak to him about the incidents with Shaun Evans” and this would happen after he provided his statement. A short time later the appellant attended the Borroloola Police Station and Acting Sergeant Hartshorn “obtained a statement from him.” After he made the Statement Acting Sergeant Hartshorn advised the appellant that he was under arrest for assaulting Shaun Evans. He was then placed in the police cells. He then participated in the EROI.
The second document was the EROI. During the EROI the following exchange occurred in relation to the incident at Mara Camp concerning Shuan Evans[18]:
HARTSHORN: … what I wanna talk to you about is the first incident that happened back on the 11th of May, in Mara Camp. Can you recall what happened on that day?
HOGAN: Um – no comment.
HARTSHORN: No comment.
HOGAN: I’ve given a statement already.
HARTSHORN: Yeah you have given a statement.
HOGAN: Yeah.
HARTSHORN: Um – I’ve got the statement, yep.
Even if the content and possible relevance of the Statement was not known to the prosecutor, or defence counsel, it was clearly relevant material known to those two police officers who were involved in the investigation. Indeed the timing of the arrest of the appellant, namely after he made the Statement and before he participated in the EROI, might suggest that there was something that the appellant said in his Statement that provided Acting Sergeant Hartshorn with additional information that he might have required before arresting the appellant for the offending on 11 May 2018.
Counsel for the respondent contended that defence counsel should have realised that the Statement existed, particularly in light of the fact that the Statement was referred to in the EROI, and could and should have requested the prosecution to provide a copy of it. Counsel also contended that some of defence counsel’s cross examination was consistent with some of what the appellant had said in the Statement, and that “during the course of providing full and frank instructions, the appellant would have disclosed to his counsel the existence of the statutory declaration, if he wished to rely upon it. Defence counsel was able to raise this with the prosecutor prior to the hearing and if required, obtain a copy of that statutory declaration. This did not occur.”[19]
I reject those contentions. The onus is on the prosecution to ensure that the defence has all relevant material available to it. There is no evidence that the appellant ever had his own copy of the Statement and no reason for his lawyer to suspect that if there was a relevant statement it would not have been disclosed by the prosecution. Moreover, defence counsel’s cross-examination did not cover all of the matters that might have been raised had he been in possession of the Statement.
Counsel for the respondent also contended that the Statement was wholly exculpatory and was not admissible in the prosecution case. Even if that were so, those are not reasons justifying the failure to disclose the Statement.
Counsel contended that notwithstanding the prosecution’s failure to disclose the Statement I should nevertheless dismiss this ground of appeal because I should consider “that no substantial miscarriage of justice has actually occurred.”[20]
A miscarriage of justice occurs where an accused person has lost a chance which was fairly open of being acquitted by reason of a failure to apply the rules of evidence, procedure or relevant substantive law.[21]

I do consider that the appellant lost such a chance by reason of the non-disclosure of the Statement. As counsel for the respondent pointed out in the passage quoted in [21] above, the Statement provides a version of events which may have exculpated the appellant from the offending conduct. Had the Statement been disclosed, the appellant’s counsel may well have been assisted in the conduct of the appellant’s defence. For example, counsel could have:
(a)attempted to require that the Statement be tendered with the EROI, on the basis that it formed part of the EROI;[22]
(b)requested and or required that the prosecution call additional witnesses referred to in the Statement, whose evidence may have corroborated the appellant’s version of the events, particularly in relation to the sequence of events;
(c)cross examined the prosecution witnesses more confidently and more effectively, and perhaps differently, on the basis of the written record of what the appellant had told the police within one month of the relevant events, rather than what the appellant might have remembered and told counsel shortly before the hearing, more than 15 months after the relevant events occurred; and
(d)decided to put the appellant in the witness box confident that he could refresh his memory from the Statement, being a document made within a month of the relevant events.
I do not consider that no substantial miscarriage of justice has actually occurred as a result of the prosecution’s failure to disclose the Statement. Accordingly, I allowed the appeal.
Counsel for the appellant contended that if I were to allow the appeal I should quash the conviction and record a finding of not guilty. I did not consider that appropriate. I do not consider there is likely to be any relevant prejudice if the matter is remitted to the Local Court for rehearing. Nor do I consider that such a rehearing would necessarily result in an acquittal.
Accordingly, I allowed the appeal, set aside the conviction, and remitted the case for hearing by the Local Court. I also gave leave for the addition of grounds 2, 3, 4 and 5 to the Notice of Appeal.
Other grounds
Grounds 4 and 5 also relate to the Statement.
Counsel was not able to provide me with any authority to support the proposition that where the prosecution tenders a record of interview which contains a reference to a written statement of an accused, the prosecution is obliged to tender that statement with the record of interview.
My tentative view is that this particular statement should have been tendered with the EROI, notwithstanding that it was self-serving, and even if, as the respondent contends, it did not contain any admissions and was not admissible at the behest of the prosecution. It seems to me that the appellant had a reasonable belief that there was no need for him to repeat what he had already told police earlier that day in the course of preparing the Statement, and also that Acting Sergeant Hartshorn considered that it was not necessary to elicit the same information again during the formal interview.
This tentative view seems consistent with the “second principle” referred to by Kelly J (Barr J agreeing) in Singh v The Queen[23] and the authorities to which Her Honour referred at [13] – [14]. An appeal against the majority decision in Singh to the effect that the prosecution was not obliged to tender a record of interview which was wholly exculpatory has been heard by the High Court. So too has an appeal against the decision in The Queen v Nguyen,[24] which relates to similar issues as those in Singh. It may be that the High Court’s discussion about the obligations of the prosecution in relation to the tendering of a record of interview will be of further assistance in relation to the issue raised by Ground 4, and perhaps Ground 5.
My tentative view is that Ground 4 would succeed and Ground 5 fail. Ground 5 was premised upon contentions that when the judge perused the transcript and watched the video of the EROI her Honour should have noted the reference to the Statement in the EROI and concluded that there may have been other evidence, namely in the Statement, relevant to self-defence. I reject those contentions. Absent any reference to the Statement by counsel in their submissions, her Honour was quite entitled to base her decision on the evidence before her.
My tentative view is that Ground 3 would fail. The main point made by counsel for the appellant was that there were a number of witnesses, such as Jason Green and some of the police officers, who should have been, but were not, called to give evidence. Counsel was not able to inform me about discussions between the prosecutor and defence counsel prior to the hearing when such matters would normally be discussed and agreed to. I infer that the prosecutor would have called all those witnesses required by defence counsel. Defence counsel would have made forensic decisions about that. Having said that, as I have said in relation to Ground 2, defence counsel may well have decided to require other witnesses to testify had he been in possession of the Statement.
Conclusions and orders
Leave is granted to add Grounds 2 to 5.
Ground 2 is made out and the appeal is allowed.
The conviction of the appellant on Count 1 on file 21825347 is quashed.
The case is remitted to the Local Court for hearing.

-------------------------------

[1] This was Count 1. Count 2 concerned another assault committed by the appellant on another person on 13 May 2018. It is not relevant for present purposes.

[2] Now referred to as Ground 1.

[3] The rest of the Statement concerned an unrelated assault on the appellant on 6 June 2019 by Alistair Evans.

[4] Namely the prosecution of Alistair Evans for his assault on the appellant on 6 June 2019.

[5] (1989) 166 CLR 409; [1989] HCA 16.

[6]I gave my decision and reasons in relation to the costs issue on 28 May 2020 and will publish those reasons shortly.

[7] Some of the police who attended Mara Camp later that night referred to “an all-out brawl occurring” and upwards of 50 people standing on the road yelling at each other and multiple people punching each other and pulling hair. I gather that the altercations extended well beyond the time of the alleged assault on Shaun Evans.

[8] I was told that the period of time between the appellant’s arrival at the camp and the altercation between him and Shaun Evans was approximately 30 minutes.

[9] I was told that five or six people have been prosecuted in relation to events that occurred that night.

[10] Seborne Timothy pleaded guilty and was convicted for assaulting the appellant by throwing a spear at him on 11 May 2018.

[11] Transcript 4 September 2019 at p 46.

[12] Transcript 12 September 2019 at p 18.4.

[13] Transcript 4 September 2019 at pp 34-6.

[14] Transcript 4 September 2019 at p 48.

[15] Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 at [55]; Mallard v R [2005] HCA 68; 224 CLR 125 at [17].

[16] (2004) 60 NSWLR 454.

[17] Unreported, Court of Criminal Appeal, WA, No 142 of 1996, 13 May 1997.

[18] Transcript of EROI at p 6.

[19] Respondent's Outline of Submissions at [4].

[20] S 177(2)(f) Local Court (Criminal Procedure) Act 1928.

[21] Mraz v The Queen [No 1] [1955] HCA 59; 93 CLR 49, 514; TKWJ v The Queen [2002] HCA 46; 212 CLR 124.

[22] This is the question raised in Ground 4.

[23] [2019] NTCCA 8 (Singh) at [13] – [14].

[24] [2019] NTSCFC 37.