Holmes v White
[2006] TASSC 80
•19 October 2006
[2006] TASSC 80
CITATION: Holmes v White [2006] TASSC 80
PARTIES: HOLMES, Jodie Maree
v
WHITE, Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 1/2006
DELIVERED ON: 19 October 2006
DELIVERED AT: Hobart
HEARING DATE: 9 October 2006
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Erroneous exclusion of evidence – Substantial miscarriage of justice.
Justices Act 1959 (Tas), s110(2)(ab).
Gregory v R (1983) 151 CLR 566; Nudd v R [2006] HCA 9, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: K Stanton
Respondent: J Ransom
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 80
Number of paragraphs: 22
Serial No 80/2006
File No LCA 1/2006
JODIE MAREE HOLMES v GRAHAM ROSS WHITE
REASONS FOR JUDGMENT EVANS J
19 October 2006
Jodie Holmes, the applicant, seeks a review of her conviction on a charge of common assault, the particulars of the charge being that on 6 June 2005 at Legana in Tasmania she unlawfully assaulted Elizabeth Springer by pushing her to the chest with her hand.
The sole prosecution witness was the complainant, Elizabeth Springer. Her evidence was to the following effect. On the morning of 6 June 2005 as she drove from her property on the West Tamar Highway, it was necessary for her to unlock the gate. She returned to her car after relocking the gate and was confronted by the applicant, whom she had not previously seen or met. The applicant was "miles bigger" than her. The applicant bent over her to the point that their noses touched and backed her up against the rear door of her car. The front door of her car was open but the applicant obstructed her from getting in. The applicant pushed her with both hands, she put her hands back to steady herself and her hand was injured when it struck the edge of the door. She was then able to get into her car. After impeding her from shutting the door, the applicant herself slammed the door shut. As the applicant walked away, she raised her finger and said to the complainant that she was going to get her.
The complainant said her injured hand was sore and bruised and after making a complaint to the police about what had occurred, she attended her general practitioner. He subsequently arranged for her hand to be x-rayed and following this it was put in a splint for six weeks.
After the 6 June 2005 incident, the complainant was told that the applicant was the daughter of the couple who ran the local garbage collection service, the applicant's mother being Hazel Holmes. The complainant said that several weeks prior to 6 June 2005 she had been involved in an incident ("the May incident") with Hazel Holmes. The background to the May incident was that contested proceedings were on foot between the complainant and her husband, for a property settlement. The complainant's husband told the complainant that Hazel Holmes and her husband, the applicant's parents, had told him that the complainant was in a relationship with another man. This and other things that the applicant's parents said to the complainant's husband had caused dreadful trouble between him and her. In May 2005, the complainant saw Hazel Holmes on the other side of the road from the entrance to the complainant's property. The complainant crossed the road and told Hazel Holmes to mind her own business.
When cross-examined, the complainant denied precipitating the incident on 6 June 2005 by beckoning to the applicant and her mother and denied touching or pushing the applicant. The complainant agreed that she had been really upset about what had been said to the complainant's husband by the applicant's parents. The complainant denied having a conflict with the Holmes family, but acknowledged an incident on an occasion when Mr Holmes had come onto her property ("the Mr Holmes incident"). When counsel for the applicant commenced to question the complainant about this incident, the learned magistrate queried its relevance and referred to the Evidence Act 2001 ("the Act"), s102, which provides that "Evidence that is relevant only to a witness's credibility is not admissible". Counsel for the applicant explained that he proposed cross-examining the complainant about the incident which he indicated concluded with the complainant, in effect, directing Mr Holmes to leave her property. The learned magistrate refused to allow the cross-examination. He said it really only went to credit and was not admissible. This ruling is the subject of the first ground of appeal.
The applicant and her mother gave evidence for the defence. In brief summary, the applicant's evidence was to the following effect. She had been present at the time of the May incident when the complainant had screamed abuse at her mother and told her to keep her mouth shut and stop spreading gossip. The applicant intervened and told the complainant to leave her mother alone and go away. On 6 June, when the applicant and her mother were travelling in a garbage truck with a view to emptying bins on the other side of the road to the entrance to the complainant's property, the applicant saw the complainant leaving her property. The complainant beckoned to the applicant who thought the complainant wanted to apologise for the May incident and crossed the road to the complainant. The applicant stopped in front of the complainant, who abused her and pushed her in the chest. The applicant denied pushing or touching the complainant.
Hazel Holmes gave evidence similar to that of her daughter in relation to the May incident and as to the incident on 6 June, she, in very brief summary, gave evidence to the following effect. She and her daughter were collecting garbage bins about 75 metres from the entrance to the complainant's property when she saw the complainant leaving the property. The complainant gestured towards them in a way that beckoned them over. Her daughter crossed the road to the complainant, who walked up to her daughter so that they were right in each other's face. Obviously something was being said, but Mrs Holmes could not hear what. The complainant then shoved her daughter in the chest. Her daughter did not touch the complainant. At the conclusion of her evidence-in-chief, counsel asked Mrs Holmes to identify a signed statement she had made to police about the incident and sought to tender the statement. The learned magistrate refused to admit the statement. He said that the statement was hearsay and could only be admissible for the purposes of identification, which was not an issue on the trial. This ruling is the basis of the second ground of appeal.
The only evidence before the learned magistrate was that of the three witnesses referred to. The learned magistrate reserved his decision and subsequently gave detailed oral reasons for convicting the applicant. In those reasons he accepted the complainant as a witness of the truth, referred to differences he noted between the evidence of the applicant and her mother about a number of matters and rejected their evidence as fictitious and unfounded in the truth. Inevitably, in the circumstances of a case such as this, the learned magistrate's decision turned entirely upon his assessment of the credit of the three witnesses.
The first ground of appeal is:
"1That the learned Magistrate erred in law in excluding cross examination of the Complainant in respect of previous incidents relying upon Section 102 of the Evidence Act 2001 when:
(a) The previous incidents were not relevant only to credibility but were relevant to the motive for the Complainant actually pushing the Defendant and to the motive of the Complainant to be untruthful about whether she pushed the Defendant and therefore relevant to the central question in issue in the proceedings; and
(b) The exception to Section 102 created by Section 103 (2) (a) applied to the evidence sought to be adduced in cross examination."
It is well recognised that evidence of an accused's motive can sometimes be highly relevant to whether the accused committed the offence charged; De Gruchy v R (2002) 211 CLR 85, Kirby J [55] and Gaurdon, McHugh and Hayne JJ [28]. Similarly, it is well recognised that a motive for a witness to lie can sometimes be highly relevant to the credit of a witness. Evidence may be given by other witnesses of events from which a motive for a witness to lie may be inferred. This has long been an exception to the general rule that a witness's evidence on a question going only to credit cannot be contradicted by other evidence; Palmer v R (1998) 193 CLR 1, Brennan CJ, Gaudron and Gummow JJ [7]. This exception has been given statutory force in Tasmania by the Act, s106(a), which provides:
"The credibility rule does not apply to evidence that tends to prove that a witness ¾
(a) is biased or has a motive for being untruthful
…
if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence."
The opportunity to cross-examine a witness as to a motive to lie is preserved by the general exception contained in the Act, s103(1), which provides:
"(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value."
The Act is in all relevant respects uniform with the Evidence Act 1995 of New South Wales. The Court of Criminal Appeal in that State has held that the definition of "probative value" contained in that statute does not apply to s103 because of its subject-matter and the terms of s103(2); R v RPS (unreported, Court of Criminal Appeal NSW, No 60583 of 1996, 13 August 1997). In that case, Hunt CJ at CL, with whom Gleeson CJ and Hidden J agreed, said at 29:
"Evidence adduced in cross-examination must … have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. … The addition of the word "substantial" nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue."
It is beyond argument that the cross-examination of the complainant about the Mr Holmes incident may have adduced evidence as to the complainant's motive to lie and that such evidence could have had substantial probative value in the sense that it could have rationally affected the assessment of her credit. Counsel for the respondent on this appeal did not submit otherwise. It seems from the transcript of the hearing that the learned magistrate did not consider the evidence that the defendant was seeking to elicit on this basis. No express or implicit reference was made to the Act, ss103(1) or 106(a). The learned magistrate's refusal to allow cross-examination of the complainant on the Mr Holmes incident was an error.
The second ground of appeal is:
"2That the learned Magistrate erred in law in refusing to admit into evidence the statement of the witness Hazel Holmes made to police about the incident when the foundation for so admitting that statement as a previous representation had been established pursuant to Section 66 of the Evidence Act 2001."
I have been provided with a copy of the statement of Hazel Holmes that is the subject of this ground. It was made on 1 July 2005 and relates to the May incident, which she says, occurred on 16 May 2005 and the incident on 6 June 2005.
The common law prohibition against a witness giving evidence of a prior consistent statement has been substantially watered down by the Evidence Act 1910, s81B and its successor, the Act, s66, which provides:
"66 ¾ (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the previous representation that is given by ¾
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made ¾
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(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 proceedings before the learned magistrate were criminal proceedings within the meaning of that term in the Act. The witness's statement related to incidents that occurred three weeks and six weeks prior to its making. A statement made within six weeks of an event is comfortably within the period of fresh memory for the purposes of the Act, s66(2), R v Adam (1999) 47 NSWLR 267, Spigelman CJ, James and Bell JJ [132 – 133].
As noted in par5, in the course of refusing to admit Hazel Holmes' statement into evidence, the learned magistrate said it could only be admitted for the purposes of identification. That statement is erroneous and appears to be based on a mis-reading of the Act, s66(3). The restriction on admissibility imposed by that subsection only applies to a prior statement of a witness made for the purpose of proceedings where the evidence of the statement is "adduced by the prosecutor". In that event the statement is only admissible if it "concerns the identity of a person, place or thing". No such restriction applies where the evidence is adduced by the defence. Hazel Holmes was a witness for the defence and it was counsel for the defendant who sought to tender her prior statement. The evidence of that statement was relevant and admissible and the learned magistrate erred in refusing to allow its admission.
Whilst counsel for the respondent accepts that the learned magistrate erred in refusing to allow the cross-examination of the complainant on the Mr Holmes incident, and in refusing to admit Hazel Holmes' statement into evidence, he seeks to rely on the proviso contained in the Justices Act 1959, s110(2)(ab). Counsel submits that the appeal should not succeed as these errors have not given rise to "a substantial miscarriage of justice".
Where evidence relied upon by a defendant has been wrongly excluded, unless the appellate court is satisfied that there is no reasonable ground for believing that the hearing might have resulted in a different conclusion if the evidence had been admitted, there will have been a substantial miscarriage of justice; Gregory v R (1983) 151 CLR 566 at 572. In this case the learned magistrate's decision turned on his assessment of the credibility of three witnesses. The written statement made to police by Hazel Holmes, which the learned magistrate refused to admit into evidence, contains extensive details of the May incident and the 6 June incident. It was made on 1 July 2005, within about six weeks of the first of those incidents and five months prior to the hearing before the learned magistrate. To the modest extent that a witness's prior consistent statement can bolster evidence, the statement directly supported the evidence of Hazel Holmes and indirectly supported the evidence of the applicant. In the statement, Hazel Holmes said that she and the applicant complained to a police officer, Constable Vermey, about the complainant's conduct immediately following the May incident and were told that there was not much that could be done about it. She says that for this reason she and the applicant did not bother to complain to police after the 6 June incident. This evidence would have been of some significance as no evidence explaining their failure to complain following the 6 June incident was put before the learned magistrate, and in its absence, it could be inferred that they did not complain to police following that incident because they realised that the applicant was in the wrong. As this evidence was not before the learned magistrate and bearing in mind that it is not known what evidence might have been elicited by the cross-examination of the complainant about the Mr Holmes incident, the respondent's burden of establishing that the excluded evidence could not have influenced the learned magistrate is insurmountable. Similarly, a contention along the lines that the errors have not given rise to any substantial miscarriage of justice because of the overall strength of the prosecution case cannot be sustained. It not being know what evidence would have been elicited from the cross-examination of the complainant about the Mr Holmes incident, the Court is deprived of the capacity to properly assess the strength of the prosecution case. See Nudd v R [2006] HCA 9, Gleeson CJ [6].
For these reasons the appeal must succeed. It is accordingly not necessary to deal with the third and fourth grounds of appeal which challenge a number of the findings made by the learned magistrate in the course of his reasons for decision.
The applicant's conviction and any consequential orders made by the learned magistrate are quashed. I order that the complaint against the applicant be retried before another magistrate.
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