Jaeger v Dunsmore
[2010] QDC 190
•23 April 2010 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Jaeger v Dunsmore [2010] QDC 190
PARTIES:
SIMON SCOTT JAEGER
(Appellant)
V
KALI-JEAN DUNSMORE
(Respondent)
FILE NO/S:
No 1945 of 2009
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Emerald Magistrates Court
DELIVERED ON:
23 April 2010 (ex tempore)
DELIVERED AT:
Emerald
HEARING DATE:
23 April 2010
JUDGE:
Irwin DCJ
ORDER:
- Appeal against conviction allowed
- The conviction and sentence imposed at first instance set aside, and the proceedings are remitted to the Magistrates Court at Emerald for rehearing before a different Magistrate
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant argued that his solicitor had failed to follow instructions to ask questions of the complainant – where the questions may have had a material effect on the assessment of the credibility and reliability of the complainant as a witness – where the solicitor failed to put the appellant’s version of events to the complainant – whether failure due to any forensic choice – whether the failure was the result of flagrant incompetence – whether the solicitor’s conduct deprived the appellant of a verdict of acquittal that was fairly open
Justices Act 1886 (Qld), s222, s223(1)
Fox v Percy (2003) 214 CLR 118, applied
Graham v Queensland Nursing Council [2009] QCA 280, applied
Mbuzi v Torcetti [2008] QCA 231, applied
R v BBQ [2009] QCA 166, considered
R v ON [2009] QCA 62, considered
R v NE [2005] QCA 328, applied
R v Nudd (2006) 225 ALR 161, cited
Rowe v Kemper [2008] QCA 175, applied
COUNSEL:
The appellant appeared on his own behalf
B. Manttan for the respondent
SOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent
HIS HONOUR: On 17 June 2009, the appellant was convicted after a summary trial of one count, that on 17 September 2008, at Emerald, he unlawfully assaulted Amanda Jean Taylor, and thereby did her bodily harm.
A conviction was recorded, and as I interpret the transcript of the sentence, he was ordered to serve three months' imprisonment, which was to be served cumulatively, with the activation of the whole of a four month suspended sentence. This total period of seven months was subject to a parole release date, fixed on 16 October 2009, after serving four months.
This appeal has been brought pursuant to section 222 of the Justices Act 1886 (the Act), against both conviction and sentence. The appeal proceeded under section 223(1) of the Act on the evidence given in the Magistrates Court.
On 5 March 2010, the appellant notified the Court that he no longer wished to pursue an earlier application that had been filed to adduce new evidence. He confirmed this on the callover held on 12 April 2010.
The appellant, who is representing himself on this appeal, attended, by telephone, earlier today, when the appeal was scheduled to be heard. He advised that due to car problems, and his state of health, he was unable to travel to Emerald to appear today. At that time, Mr Manttan, who appears on behalf of the respondent, indicated that due to a number of irregularities in the trial, he was not arguing about the conviction and sentence being set aside, and the proceedings being remitted to the Magistrates Court.
Having regard to some concerns about the quality of the appellant's representation before the Magistrate, at that time, I indicated that, for reasons which would subsequently be published, the appeal against conviction would be allowed, and the conviction and sentence imposed, at first instance, be set aside, and the proceedings be remitted to the Magistrates Court at Emerald for rehearing before a different Magistrate. I now set out my reasons for that order.
In hearing an appeal of this nature, it is necessary for this Court to afford respect to the decision of the Magistrate, and to bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but also, to review the evidence, to weigh the conflicting evidence, and to draw its own conclusions: Fox v. Percy [2003] 214 CLR 118 at [25]; Rowe v. Kemper [2008] QCA 175 at [5]; Mbuzi v. Torcetti [2008] QCA 231 at [17].
It was held, in Graham v. Queensland Nursing Council [2009] QCA 280, per Fryberg J at [69]-[70], with whose reasons the Chief Justice agreed: "The central task of an appellate Court in an appeal by way of rehearing is not to analyse the correctness, or otherwise, of the decision below, although an analysis may sometimes be helpful. It is to decide the case for itself. Often, it will do so by considering only the evidence admitted at first instance. That is usually the position with appeals under section 222 of the Justices Act 1886. … That requires an appellate Court to draw its own inferences from the facts established by the evidence, while respecting the advantage of the Court or Tribunal at first instance, in seeing and evaluating witnesses. This is particularly relevant when issues of credibility arise."
In his outline of argument, filed on 17 September 2009, the appellant submitted the following arguments in support of his appeal:
My solicitor failed to follow instructions from his client, which was to ask several key questions which would have devastated Ms Taylor's testimony, and shown she was lying, as well as asking things in an out-of-sequence and illogical manner.
The Judge erred in giving weight to the evidence available, and failed to view additional evidence and testimony available at the same time. He also dismissed my statement as a lie out of hand, saying, "I believe you would do or say anything to get out of this!" I was then sentenced to three months, escorted away by police, recalled without legal counsel present, and given a four month sentence, where I was told I showed no remorse, but why should I show remorse for something I did not do?
We were not allowed to present background information which would have shown why Ms Taylor had a grudge to settle against me.
Ms Taylor's own testimony conflicted with police witnesses there on her own behalf.
Witnesses present on my behalf were not questioned.
The police Prosecutor offered a deal before Court, if I would just change my plea to guilty. This shows to me not the pursuit of justice, but a pursuit of a way to save time.
According to Ms Taylor's testimony, I would have had to have been an acrobat of supreme skill, ranking near Spiderman level, to have committed the assault in the manner she portrayed.
New evidence has come to light which confirms that Ms Taylor had a grudge to settle, and at least partially succeeded by having me imprisoned and separated from my child. Also, I have statements showing lies in her testimony about her employment, which pre-empted this incident.
I believe I did not receive a fair trial. I feel that the Judge took an instant dislike to me, that, combined with other local factors at the time, caused him to err in his decision.
Police escorting me to Rockhampton agreed that my witness should have been heard.
At no time have I, nor will I, plead guilty. I did not assault Amanda Taylor.
The Judge did not take into consideration the people affected (my son and employer) by my imprisonment.
Customers and friends of mine can verify that I was not acting out of character on the day in question.
Police took two weeks before charging me.
Photographic evidence shows no injuries, then, 10 days later, show huge bruises.
I was convicted on circumstantial evidence and hearsay.
It is convenient to consider these issues in the context of the evidence before the Magistrate. Ms Taylor was at the Emerald Cellars bottle shop at the Woolworths complex, when the appellant approached her at the counter. Mr Baker, who was working there at the time, said that this was about 12.30 p.m.
Ms Taylor's evidence was that she had known the appellant for about two and a-half years. She said that he started swearing, and said, "Where's my fucking money?" She described him as yelling at her, standing over her and pointing his finger. She responded by telling him three times, continuously, "Just fuck off." She could not recall whether he said anything in reply, because she was a bit flustered due to his intimidating behaviour. He left, and walked over to the bike rack out the front of another store.
Mr Baker said he saw the two persons in the bottle shop. When he did so, he sensed a bit of tension. He said the male, whom he identified as the appellant, because he was a regular customer, reached out to grab her arm, but he did not think that he made contact. He saw the appellant's mouth move, speaking softly to her, although he admitted that he was a bit hard of hearing. He could not say that the appellant spoke aggressively to her. It was only the reaching out which he regarded as aggressive. He said that the appellant left quickly after being told to go away.
His recollection was that before the appellant left, Ms Taylor said to him, "Leave me alone, or don't touch me." He did not recollect her swearing. After the appellant left, Mr Baker served her, noticing that she looked a little bit distressed.
According to Ms Taylor, when she left the bottle shop, she walked over to where the appellant was and said, "What's the go, Simon?" He replied that he wanted his "fucking money". She said this was a reference to $70 that she and Melanie Bailey had borrowed off him about two months previously. She says she replied that she would give him $35, and he should get the balance off Melanie.
Her evidence was that following this, she started walking home along Hospital Road, carrying grocery bags in each hand. She had her earphones in, listening to the radio. She had just turned the corner into Harris Street when she felt the appellant ride past on the road on a pushbike. She described this as a girls' bike. She could see his mouth moving, so she pulled out one of the earphones and said, "What's that? I didn't hear you." She says he replied, "You heard me," to which she responded, "No, I didn't."
According to her, the appellant then said, "Well, I'll fix this." At this time, she was just before the driveway of the entrance to the Emerald Gardens Motel. She says that he turned his bike around and rode it up the driveway at her, pinning her against the masonry brick motel fence with the wheel. According to her, she couldn't move her leg, but her groceries were still in her hands.
She then said he punched her in the jaw with a closed fist. Because it was happening so quickly, she did not know which fist he used. She yelled, "Help," and he punched her three times to the right eye and nose. She originally said that the punches were to her left eye, but after she was shown the photos which were taken later on the day of the alleged incident, she accepted that she was mistaken, due to the passage of time since the alleged incident.
She said it was all just "kapow, kapow". She said the hardest punches were to the eyes. She said that she didn't even have a chance to drop her groceries. Mr Scott, the manager of the motel, who saw her shortly after this, did not recall if she had anything in her hands.
In cross-examination, Ms Taylor said she could not recall the appellant holding anything. This was relevant to his evidence, that when he left the bottle shop, he was carrying three tallies of beer in a bag that was looped over his wrist as he rode his bike. Her evidence was she did not see him holding anything other than his bike. According to her, he did not get off the bike. She could not recall how he was holding it, other than to say it was between his legs.
As a result, she said she suffered two black eyes, of which her left eye was worse, however, as I have indicated, she later corrected this to her right eye. She also said she felt excruciating pain when she was being hit. It felt like her nose was going to explode.
Mr Scott ran out from the motel. His evidence was that while he was in the back office, he heard what he thought was a kafuffle outside. By this, he meant a noise or disturbance. He heard a woman's voice yelling, "Would someone please help me?" He said he walked out of the office and saw a woman. According to cross-examination, he said it would've taken him 10, 20, 30 seconds to get there.
He said that the woman, who was Ms Taylor, looked a little bit distressed. She was on the footpath outside the motel. Ms Taylor's evidence was that, at the same time as Mr Scott was arriving, the appellant had started riding away. Mr Scott said that he noticed a man disappearing on a bicycle in an easterly direction on Harris Street at the time he came out onto the footpath. He did not see where this bicycle had taken off from. He made the observations through an entrance which was about seven metres wide. He could not see down the road in either direction, however, he was clear that this man was riding his bike on the footpath when he saw him.
Mr Scott called the police, and took Ms Taylor inside the motel. He described seeing markings on her face, and one of her legs, around the knee or calf area. He described some redness about her face. He said she had some blood on her face and leg, and she was visibly upset.
He recalled that police arrived about 10 minutes later. The respondent, Constable Dunsmore, said she received a call at about 12.40 p.m. According to the respondent, when she saw Ms Taylor, she was in a distressed and upset state. She noticed redness to her right eye and left calf.
The police took Ms Taylor to the police station, where photographs were taken, which are Exhibit 1. She was then taken to the hospital, where she was given strong painkillers, before being sent home to rest. Dr Tace, who examined her, noticed bruising around her right eye. He described this as a black eye. He also noticed swelling below the left knee, laterally. He described this as a soft tissue trauma.
In his opinion, both injuries were consistent with recent blunt trauma, for example, from a bike wheel. He also expressed the opinion that they amounted to bodily harm within the legal definition of that term.
In his opinion, the eye injury was consistent with being punched in the eye. He would have assumed that the injuries had occurred within a few hours before he examined her. The evidence suggested that he examined her no later than two hours after the alleged incident.
In cross-examination, he conceded he was not in a position to determine what force was used. He said that he could only give evidence of his findings, and other than saying that the injuries were consistent with an assault, it would be conjecture as to how they were caused. He could not say they were definitely caused by an assault.
Ms Taylor said that she took the painkillers which had been given to her for about four days. She said she laid in bed for a few days, and couldn't see out of her eyes.
A second set of photographs were taken on the 26th of September 2008, which she said showed the bruising after it had come out and the swelling had gone down. Those photographs were Exhibit 2.
The appellant's evidence was that he had known Ms Taylor for four and a-half to five years. During that time, they had visited each other's home. Their children used to have play dates together. She would bring her children to his place for babysitting. This would occur over a period of about two‑three months.
According to him, they became friends, and he would go to her place reasonably frequently. At one stage, he would stop at her place nearly every day, on the way home from work, even if it was only for 10 to 15 minutes.
However, he said they also had some serious conflicts. He described an occasion, about one and a-half-two years previously, when she had tried to hit him with a cricket bat at her place. According to him, she had asked him to do a favour which he was unable to do. She got upset, and started yelling or screaming. When he started to walk down the stairs, she hit him in the back with a cricket bat.
He said he worked for Emerald Ice and Emerald Jukebox Hire. He described himself as the assistant manager of the jukebox hire place. He said this side of the business was his whole responsibility, and a person named Scott Boyle, who was mentioned in the appellant's evidence, had nothing to do with it.
He said that as assistant manager, he was in charge and responsible for the equipment of the jukebox hire business. He said that because his licence was suspended due to a one year disqualification, he had an arrangement with his employer that he would give up his hours pay for whoever drove. The condition on which he kept his job was he had to find a driver. He would pick up the jukeboxes and organise everything, but the person who drove would basically get his wage for the job.
His evidence was that he told Ms Taylor he was looking for a driver, and she offered to take this role. He described her as being employed by him. On the other hand, her evidence was that she had been asked by Mr Boyle to help out in this role. She said she was dating him at the time. She also said her payment was a sixpack of beer. The appellant's evidence was that Ms Taylor started to see Mr Boyle about a week or so after she started driving.
The appellant also said that he had previously lent Ms Taylor money, which she hadn't repaid. She was to be paid $120 for her work. He said he kept back her paycheque to get back the money she owed him, but she still owed him, at least, another $15.
He also said that the vehicle which he drove belonged to Emerald Ice. He asked her if she had a driver licence. She said she had, but had misplaced it, and had to get a replacement from the Transport Department. His evidence was that he gave her two weeks to produce the licence, however, because, after two-three weeks, she did not produce it, he had to sack her. This was despite the fact, according to his evidence, he had given her an extra week to produce it.
He said, when he sacked her, "she went off her nut", and she was "screaming, ranting and raving", and threatening to have Family Services come and look into his son. He described her as a very vindictive and nasty person.
His evidence was that although he didn't want to have anything more to do with her, after one-two months, his friend, Melanie Bailey, brought her back into his life. His evidence was he decided to let bygones be bygones, and give her another chance. He said he even apologised to her.
Following this, she started visiting his house with Melanie, and on one occasion, about a month before the alleged incident, she visited him alone, after which 75 to 85 dollars disappeared. He was 100 per cent certain she took it. He was upset about this. According to him, she subsequently admitted she took it, and said she would repay him.
On the day of the alleged incident, after work, he rode on what he described as his "old woman's 10 speed bike" down to Woolworths, to see how much money was in his bank account, and to get a packet of cigarettes. He noticed Ms Taylor at the bottle shop, and despite the fact he said they had a falling out a few months before, he walked in and talked to her.
He described what took place between them as a bit of an argument. His version of the conversation was that he said to her, "Well, since you can't afford alcohol, can you pay me back some of the money you owe me?" He said she started to scream, and told him to "fuck off" a number of times.
As her voice got louder, and because he was in his work uniform, he left, as he did not want attention drawn to himself. He denied Mr Baker's evidence that he went to grab her arm. He said he never touched her. However, he accepted he was probably just gesturing by moving his arms about.
He said he was there about 15 to 20 seconds. He then went to Woolworths and bought a packet of cigarettes, and got some money out. He also bought three tallies of beer while he was at the complex.
He said that while he was outside the bottle shop, she came up to him and said, "What's the go, Simon?" He replied, he just wanted her to pay back the money she owed him. She accused Melanie of stealing it. However, he responded that she took it, and to pay it back. He denied swearing or raising his voice.
He also said because he didn't want to attract attention to his place of work, he told her to keep the money and to never talk to him or ask him for help again, because she wouldn't get it. He told her that he was going home.
His evidence, then, was that he was riding home on his bike via Harris Street, which was the most direct route to where he was living at the time. He said this was his normal route home, and he made sure he did not go anywhere near his ex‑partner's house, due to a domestic violence order. As I have previously said, his evidence was he had the loops of the bag carrying the tallies over his wrist.
His evidence was that the bike was a rickety one, and wouldn't have been able to handle going up a gutter. He also said that in Harris Street, he was on the left-hand side of the road, which was opposite to the verge or nature strip outside the Emerald Gardens Motel. He conceded it was possible he could have gone as far as the middle of the road, but he said he definitely did not go onto the right-hand side. He said he was on the other side of the road, opposite the motel.
He said he saw Ms Taylor. He estimated this was about five minutes after their argument. He described her as being two metres from the driveway. He denied speaking to her, but said she started screaming, "I'm going to see you back in gaol, Simon." He suggested that this was connected with his sacking her, and to her having pretty intimate knowledge of what happened between he and his ex-partner. He said there were several other reasons as well.
He denied ever going onto the footpath and hitting her. Rather, he said he kept riding home, but as he did so, she started screaming out, "Help, help," at the top of her lungs. He said he kept riding, and wasn't going anywhere near her, because he did not want to get involved with her. He said none of the beer bottles were broken. He also said he was shocked when the police came and made the allegation to him the next day, which forms the subject of the charge before the Court.
In order to establish assault occasioning bodily harm, the prosecution must prove, beyond reasonable doubt:
The defendant assaulted Ms Taylor in the sense that he struck, touched or otherwise applied force of any kind, either directly or indirectly, without her consent.
The assault was unlawful in the sense of not being authorised, justified or excused by law.
The defendant thereby did her bodily harm, that is, any bodily injury which interferes with health or comfort.
The appellant's solicitor conceded, in his address, that Ms Taylor had injuries which could have caused her pain and discomfort. This is consistent with Dr Tace's evidence, that she was suffering bodily trauma causing bodily harm. Dr Tace showed an appreciation, during his evidence, of what is required to constitute bodily harm within the legal definition.
The real issue is whether the prosecution has proved, beyond reasonable doubt, that the defendant assaulted Ms Taylor in the way she alleges, that is, by riding the bike into her so as to pin her to the motel fence, and to punch her to the face on four occasions with a closed fist.
If he did so, there could be no authorisation, justification or excuse for this on any view of the evidence. Therefore, any such assault would be unlawful.
This is a case of Ms Taylor's word against the word of the appellant. Although it is not a question of making a choice between their evidence. This is because the prosecution case depends upon accepting the evidence of Ms Taylor as being true and accurate beyond reasonable doubt, despite the sworn evidence by the appellant. Therefore, it is not necessary that the appellant is telling the truth before he is found not guilty.
Whereas here, there is defence evidence, usually one of three possible results will follow:
The appellant's evidence is credible and reliable, and it provides a satisfying answer to the prosecution's case. If so, the verdict would be not guilty.
Although the appellant's evidence was not convincing, it results in a state of reasonable doubt as to what the true position was. If so, the verdict would be not guilty.
The appellant's evidence should not be accepted. If so, it should be set to one side, and regard had to the rest of the evidence. The question, then, is, on consideration of such evidence as is accepted, whether the prosecution has proved the elements of the offence in contention beyond reasonable doubt.
In determining whether I am satisfied of the material aspects of Ms Taylor's evidence, it is relevant to assess it in the context of the surrounding evidence. This is the approach the Magistrate took. In this regard, the evidence of Mr Baker and, in particular, Mr Scott, is relevant.
The Magistrate found Mr Scott to be a particularly impressive witness. He correctly described him as a completely independent person. His version of events was unchallenged. The same can be said about Mr Baker, whose evidence also impressed the Magistrate.
In reviewing the evidence, I can see no reason not to accept the Magistrate's assessment of Mr Scott as a witness, however, while I cannot see a reason to depart from the Magistrate's view that Mr Baker's evidence was impressive, I have some reservations about his reliability. He is a bit hard of hearing. His evidence that the appellant appeared to reach out and grab Ms Taylor is not only rejected by the appellant, but is not supported by Ms Taylor. Her evidence was that the appellant was standing over her, and "sort of, like, pointing his finger". The appellant's evidence was that he was probably just gesturing by moving his arms.
Mr Baker also did not recollect that Ms Taylor swore, however, her evidence, similarly to the appellant, was that she told the appellant to "fuck off" on a number of occasions.
Contrary to Ms Taylor's evidence, Mr Baker did not describe the appellant as yelling at her. He just said he saw the appellant's lips move, but he spoke softly. This, of course, may be explained by his hearing deficit. Mr Baker agreed that the appellant left very quickly when she told him to go away.
Ultimately, I do not consider it necessary to determine the detail of what occurred at this point, because the appellant admits they had a bit of an argument in the bottle shop. There is also no doubt this related to some money he claimed she owed him. Her evidence was he asked her, "Where's my fucking money?" He says his words were, "Can you pay me back some money you owe me?"
I do not consider it is essential to determine the actual terms of this conversation for the purpose of this appeal. There is no suggestion, from the appellant, that Ms Taylor had any injuries to her face at this time.
Mr Scott gave evidence of hearing a noise or disturbance outside the motel, followed by a woman yelling for help. By, at the most, 30 seconds later, he saw Ms Taylor looking distressed on the footpath. At the same time, he saw a man disappearing on a bicycle through the seven metre wide entrance. The bicycle was on the footpath.
The defendant's evidence is he was riding a bicycle on the street, in the vicinity of Ms Taylor, when she commenced to call for help. There is no suggestion by the appellant that there was any other bicycle in the vicinity. Accordingly, it was a reasonable hypothesis that he was the rider of the bicycle which was seen by Mr Scott.
As I have observed, when Mr Scott saw Ms Taylor, she had markings on her face and one of her legs, around the knee or calf area. He described it as some redness about her face. He said she had some blood on her face and leg. He described her as being visibly upset. These are the injuries seen by Dr Tace about two hours later.
Constable Dunsmore also described injuries consistent with Mr Scott's recollection to the complainant when she attended the scene shortly afterwards.
It is therefore a reasonable hypothesis that at some time between the appellant seeing Ms Taylor in Harris Street and when she was seen by Mr Scott, she suffered injuries to her face and leg.
The effect of the appellant's evidence is to suggest she has inflicted the injuries on herself, consistently with his allegation that when she saw him in Harris Street, she called out, "I'm going to see you back in gaol, Simon," after which she started yelling for help.
It is against this background that I consider the issues raised by the appellant in support of his appeal. It is only necessary to consider one of the issues raised by him in order to determine the appeal. Although I indicate I would not have allowed the appeal on any other basis, as I understand his outline.
The issue which I do address is his allegation his solicitor failed to ask several key questions, which would have devastated Ms Taylor's testimony and shown she was lying. In conjunction with that, the appellant also argued his solicitor asked things out of sequence and in an illogical manner. He also says there were witnesses present on his behalf who were not questioned. As a result, he argues there has been a miscarriage of justice.
The principles to be applied to a claim that a miscarriage of justice has been occasioned by incompetent conduct of the defence case are relevantly discussed in two recent decisions of the Queensland Court of Appeal. These are R v. BBQ [2009] QCA 166, 21 April 2009, and R v. ON [2009] QCA 62, 18 February 2009.
As observed in BBQ, at [92], Courts are extremely cautious in relation to claims that a miscarriage of justice has occurred in this way. As stated at [90] of that case, the fact decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment, or even negligence, will not automatically entitle an accused person to a retrial in every case; whether or not a new trial shall be ordered will depend on the circumstances of each case; and a new trial will generally not be appropriate, unless the incompetent or improper conduct by counsel deprived the person of a significant possibility of acquittal.
At [91], R v. NE [2005] 2 Qd R 328 is considered. In that case, it was said that when there has been flagrant incompetence on the part of counsel, the burden of proving the appellant has been deprived of the chance of an acquittal that was fairly open may be easily discharged. It is more difficult to discharge where the alleged error is a decision based on a forensic choice. This is because, for a trial to be fair, it is not necessary that every tactical decision by counsel be carefully considered or wise.
In R v. NE, the Court concluded: "The question, in the end, is an objective one; whether the decision or choice complained of is capable of reasonable explanation. If it is, it cannot be said that an appellant was thereby deprived of a chance of acquittal that was fairly open."
As also observed in that case, whilst the assessment of the conduct of a case remains an objective one, the assessment must be made upon the factual premises of what challenge could have been made to the prosecution evidence, and what evidence could, and would, have been given by the appellant, had he been so advised.
In R v. ON, Holmes JA, with whose reasons Muir and Fraser JJA agreed, quoted a passage in Gleeson CJ's judgment in R v. Nudd (2006) 225 ALR 161 at 165, which included the following statement: "There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot, altogether, eliminated. In general, however, as far as justice permits, the inquiry should be objective."
It was submitted, in the respondent's written outline of argument, that the inquiry, in this case, should be an objective one. In fact, neither the appellant nor the respondent has suggested that the inquiry should be other than an objective one.
One of the criticisms made by the appellant is his solicitor asked things out of sequence, and in an illogical manner. However, there is no requirement that counsel ask questions in any particular sequence, or with any particular logic. The sequence of questions does not need to follow in any logical manner, and in fact, it may be an appropriate tactic of cross‑examination not to ask questions in a sequential or chronological manner.
A more significant matter is the argument the appellant's legal representative failed to follow instructions to put key questions to witnesses. In this regard, it is apparent, from the transcript of proceedings before the Magistrate, that the appellant gave evidence about a number of things, about which no suggestion was made to Ms Taylor.
These are catalogued by the Magistrate as follows: "Mr Jaeger, in my view, was completely and utterly unreliable. He said that Ms Taylor was vindictive and nasty. Well, I get the exact impression of him; that he was bitter, that he was vindictive, that he was nasty, and that he was prepared to say whatever he needed to further his case. I note that in his evidence-in-chief, he said a number of things that were never put to Ms Taylor, no suggestion at all. It was never put to Ms Taylor that the $120 she earned during the driving was kept as payment for some debt. It was never - no suggestion, she would never have an opportunity to comment on it. It was never put to her that she admitted that she took the money, and was going to pay it back. That was never put to her.
It was never put to Mr - that she said, at the bottle-o, 'Just keep the money. Let it go. Never talk to me again. Never ask me for a favour. I am going home.' That was never suggested at any time prior to his evidence. It was never suggested to her that she was working for him for a week before she met Mr Scott Boyle. She said she was doing the job as a favour to Mr Boyle. Never suggested to her that she wasn't even seeing him when she started it. It was never suggested that it was his responsibility, and Scott Boyle had nothing to do with the jukebox. It was not suggested to Baker that - Baker gave clear evidence that he had a grab at his arm. It was not suggested that it didn't happen. It was not put to her that she didn't have her money. Go and speak to Melanie.
Quite frankly, as I said, it seemed to me that Mr Jaeger was prepared to say whatever he thought was needed to advance his cause. I reject his evidence. I find him unreliable." (See T1-77, lines 25-60).
The evidence which the Magistrate commented on, as not having been put to witnesses, largely came after the appellant had responded to questions from his lawyer in the traditional manner of giving evidence-in-chief. At this point, the appellant asked his Honour whether he could tell him what happened, in his own words. His Honour replied that his lawyer might ask him to do this. His lawyer then said: "Well, okay, would you like to say, in your own words, what happened regarding anything that might have been missed in the questioning … regarding the incident where you've alleged … to have hit Amanda Taylor?"
The invitation to give evidence about anything which might have been missed in his questioning suggests an acceptance by the appellant's legal representative that he failed to ask questions to elicit information in the course of his questioning during the hearing. It is unlikely he would allow the appellant to give an account, otherwise than in response to his questions, if he was unaware of what the appellant might say.
Further, the appellant's belligerence, which is evident from his response to questions in cross-examination, suggests that he is so obsessed with his own view of what occurred, and the reasons that it occurred, he would be unlikely not to have disclosed these facts to his lawyer. This is further supported by his lawyer not remaining mute throughout the appellant's recitation of the information, but rather, asking the appellant an albeit small number of questions in the course of this. This was, at least, to the extent the Prosecutor objected that, perhaps, the appellant's lawyer could not put words in the witness' mouth.
This evidence provided a motive for Ms Taylor to fabricate allegations against the appellant, namely her annoyance at his approaching her to ask for money. It also reflected adversely on her character, while painting the appellant's character in a more favourable light.
It was evidence given to support the appellant's suggestion that Ms Taylor is a very vindictive and nasty person. A statement to this effect prefaced his explanation.
In addition, the Magistrate had disallowed the appellant's legal representative from asking Dr Tace to comment on the possibility that Ms Taylor's injuries had been caused by her rubbing her face and knocking herself against a wall, and to disallow his submission that the injuries were from a vindictive person just rubbing her face against a wall and pretending, because she had not been questioned about this, and the appellant gave no evidence of seeing her do this.
Despite the appellant not saying he saw Ms Taylor act in this way, in circumstances in which he says he did not cause the injuries, the most probable explanation, in contradiction of her account about how they were caused, is they were self‑inflicted in some way. It was proper to explore this issue in cross-examination of the doctor, and in submissions. However, the failure to put this possibility to Ms Taylor deprived the appellant of any opportunity to do so.
The appellant's lawyer conceded to the Magistrate he probably should have put this proposition to Ms Taylor.
What is significant in relation to the Magistrate's cataloguing of the number of things which the appellant said in his evidence‑in‑chief, and which were never put to Ms Taylor, is he did so in the context of assessing the appellant's credibility.
As indicated, he prefaced this catalogue of failures to put evidence to Ms Taylor with the comment: "Mr Jaeger, in my view, was completely and utterly unreliable. He said that Ms Taylor was vindictive and nasty. Well, I get the exact impression of him; that he was bitter, that he was vindictive, that he was nasty, and that he was prepared to say whatever he needed to say to further his case."
Having completed this catalogue, the Magistrate concluded: "Quite frankly, as I said, it seemed to me that Mr Jaeger was prepared to say whatever he thought was needed to advance his cause. I reject his evidence. I find him unreliable."
His Honour did not expressly give any other reason for this conclusion than the matters he catalogued. This approach involved the application of the rule in Browne v. Dunne, under which the failure to give Ms Taylor the opportunity to comment on the appellant's version may have a bearing on whether to accept what the appellant said on the point.
However, before drawing such an inference, consideration should be given to other possible explanations for the failure of the appellant's solicitor to put questions about this version to Ms Taylor, or, for that matter, to other witnesses, such as Mr Baker.
The Magistrate did not take into account the obvious explanation for the failure, that is, the transcript clearly demonstrates that the appellant's lawyer had no understanding of the rule. I refer to T1-18 to T1-19 of the transcript, where the lawyer concluded his cross-examination of Ms Taylor without putting the appellant's case to her.
The relevant exchange with the Magistrate, from T1-18, line 30, to T1-19 line 15, is as follows:
"BENCH: Miss - just before you go?‑‑ Yeah.
Mr [Appellant's lawyer], you're aware of the rule in Browne v. Dunne?
[APPELLANT'S LAWYER]: I briefly looked at it, your Honour.
BENCH: And is that all the cross-examination you have?
[APPELLANT'S LAWYER]: That's the - I understand that I can have a set of witnesses, and Ms Taylor can be a witness then.
BENCH: No, no, that's not the situation. What the rule - the way I understand‑‑‑‑‑
[APPELLANT'S LAWYER]: Yes, excuse me. Just‑‑‑‑‑
BENCH: The rule of Browne and Dunne, [Appellant's lawyer], is you're going to allege certain things happened, and this witness should be given an opportunity to comment on them, unless I'm wrong, Sergeant?
SGT SCHICK: No, your Honour. Correct.
BENCH: It's a matter for you.
[APPELLANT'S LAWYER]: Sorry, could you repeat that?
BENCH: If that's not the case, then it goes to a matter of weight.
[APPELLANT'S LAWYER]: So, excuse me, your Honour, I understand that I could put Mrs Taylor in the witness box after there's been - when I have my set of witnesses?
BENCH: No.
[APPELLANT'S LAWYER]: Okay.
BENCH: No, that's not the case.
[APPELLANT'S LAWYER]: Okay. Thank you, your Honour. I'll continue with what I intended to ask her when I thought she could've been a separate witness."
The lawyer then proceeded with the questioning, without putting the appellant's version. He also demonstrated a complete lack of understanding of the hearsay rule during the appellant's evidence-in-chief, when he attempted to ask questions about a conversation the appellant was alleged to have had with Melanie Bailey, in which Ms Bailey gave her reaction to the exhibit photographs.
As a result, the following discussion occurred, at T1-50, line 35, to T1-51, line 2:
"BENCH: That's admissible, but how is the evidence of what Ms Bailey's reaction admissible through this witness? Basically‑‑‑‑‑
[APPELLANT'S LAWYER]: Well, she observed the photographs.
BENCH: Yes, yes, but isn't - what's happening, isn't it obvious, Mr [Appellant's lawyer], is that you've shown her the photographs. She's not prepared to give evidence, so you're trying to get her evidence in through this witness. How is that admissible?
[APPELLANT'S LAWYER]: Well‑‑‑‑‑
BENCH: Sergeant, have you anything to say about it?
SGT SCHICK: Your Honour, unless he can show us exception to the rule for hearsay, it's going to be hearsay.
[APPELLANT'S LAWYER]: My interpretation‑‑‑‑‑
BENCH: Well‑‑‑‑‑
[APPELLANT'S LAWYER]: ‑‑‑‑‑of hearsay was that if it came directly from the person who experienced that, either visually, auditorally [sic] or tacitly, that it would be admissible."
This demonstrates a complete lack of understanding about the three rudimentary principles of evidence and procedure in a criminal trial.
In these circumstances, I have concluded the failure of the appellant's lawyer to put his client's version of events to Ms Taylor, in particular, was not due to any forensic choice, but due to a lack of understanding, which, regrettably, can only be described as being flagrantly incompetent.
As was said in R v. NE, in such circumstances, the burden of proving that the conduct of the appellant's counsel deprived him of a verdict of acquittal that was fairly open may be more easily discharged. I consider it has been discharged in this case. Notwithstanding having regard to the circumstances surrounding Ms Taylor's evidence, on one view, this was a strong prosecution case, the fact is, the conduct of the lawyer in not putting the appellant's version to Ms Taylor was a material factor in the Magistrate finding the appellant was an unreliable witness, and rejecting his evidence.
As a result, he lost the opportunity of an acquittal on the bases that:
His evidence was credible and reliable, and that it provides a satisfying answer to the prosecution's case; or
His evidence, although not convincing, left the Court in a state of doubt as to what the true position was.
Even if his evidence was put aside, and the rest of the evidence is considered, in order to convict, it would be necessary to be satisfied, beyond reasonable doubt, that Ms Taylor's evidence that the appellant assaulted her was true and reliable.
Even considering Ms Taylor's evidence in the context of the surrounding evidence, which I would accept from Messrs Scott and Baker (bearing in mind what I have said about Mr Baker's evidence), Constable Dunsmore and Dr Tace, I am of the view that the appellant lost the opportunity to test her evidence by questions concerning their previous relationship, particularly with reference to the money which she was alleged to have stolen and owed to him, and as to whether her injuries were self-inflicted. Her reaction to these questions, and other lines of cross-examination which may have opened up as a result, may have had a material effect on the assessment of her as a credible and reliable witness, and in particular, whether she was the vindictive and nasty person, as asserted by the appellant, who would be prepared to fabricate these allegations.
For these reasons, I conclude that because of the way the defence was conducted by the appellant's lawyer, in circumstances where I have categorised his conduct in the way I have described, the appellant was deprived of a chance of acquittal fairly open to him.
Because the reason he lost this chance relates to an assessment of the credibility and reliability of witnesses, in light of further questioning, these are not issues that I am in a position to determine in an appeal on the papers.
Accordingly, the order of the Court is:
Appeal against conviction allowed.
The conviction and sentence imposed at first instance set aside, and the proceedings are remitted to the Magistrates Court at Emerald for rehearing before a different Magistrate.
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