Morton v Johnston

[1997] QCA 374

IN THE COURT OF APPEAL	[1997] QCA 374
SUPREME COURT OF QUEENSLAND

C.A. No. 206 of 1997

Brisbane

[Morton v. Johnston]

ALASTAIR DAVID MORTON

v.

COLIN NEIL JOHNSTON

Appellant

Davies JA
Shepherdson J

White J

Judgment delivered 24 October 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL - appeal against conviction - unlawful assault - whether prosecutor should have called certain witnesses - Fuller and Cummings v. Field and Anor (1995) 78 A Crim R 211 - whether miscarriage of justice - whether verdict unsafe and unsatisfactory as against the weight of evidence.
Counsel:	Mr P Davis for the appellant Mr R Martin for the respondent
Solicitors:	Stephens & Tozer as town agents for Baldwin Conroy Lawyers, Gympie (formerly Baldwin Conroy and Garrahy) for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	11 August 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24 October 1997

The appellant appeals against his conviction in the Magistrates Court at Gympie that on 29 June 1996 at Rainbow Beach he unlawfully assaulted Paul Coates. The date on the indictment would appear to be incorrect in that the evidence suggests the events the subject of the charge occurred on the evening of Friday 28 June. Nothing turns on this. The grounds of appeal are that a miscarriage of justice occurred because the learned magistrate failed to stay the prosecution against the appellant when the prosecutor declined to call certain witnesses required by the defence and that the verdict is unsafe and unsatisfactory being against the weight of evidence.

On the evening of 28 June 1996 the complainant, Paul Coates, Ryan Johnston the son of the appellant and the appellant along with about a hundred other members and visitors were at the Rainbow Beach Sports and Recreation Club. The Coates and Johnston families were local residents and the extensive material before the learned magistrate indicated that there was bad blood between the family members of longstanding. At about 10.30pm Coates approached the bar for a drink and as he did so Ryan Johnston, the appellant's son, pushed him and made a comment. Coates then pushed Ryan Johnston and also made a comment. At that point the appellant came between the two young men and, on Coates' account, grabbed him by the neck and forced him backwards. Coates drew his arm back to hit the appellant but Ryan Johnston and others intervened and pulled them apart.

The appellant said that he was concerned that a fight might ensue between the two young men, so he approached them at the bar, told Coates to "piss off and leave us alone" and at the same time flicked the palm of his hand upwards with the fingers skyward. He said that "it" (presumably his hand) was about 8-12 inches from Coates' face. He denied ever touching him still less putting his hand about Coates' throat and forcing him backwards.

The learned magistrate found that the appellant assaulted Coates in the manner alleged. The appellant had no prior convictions and, considering the assault trivial, the learned magistrate imposed no penalty and recorded no conviction.

Failure to call witnesses

The defence submitted below that because the prosecution did not propose to call a number of witnesses whom the police had interviewed and whom the defence wished to have called the learned magistrate ought to stay the prosecution. The police prosecutor contended that unlike committal proceedings where the prosecution must present all evidence favourable or otherwise to the prosecution case, in a summary trial "the prosecution has the autonomy to call the witnesses who support their version of events" (R5) and he submitted that the prosecution was entitled to cross-examine witnesses who provided a different version of events to the version given by the complainant. This is clearly incorrect. The prosecutor then proceeded to explain to the learned magistrate that the persons whom he had decided not to call would say that they did not see "anything" happen meaning, not that the assault did not occur, but that they did not notice the event in question. The prosecutor would appear to have decided that those witnesses could not give direct evidence of the primary facts of the case.

A useful summary of the role of the prosecutor in calling witnesses is to be found in Fuller and Cummings v. Field and Anor (1995) 78 A Crim R 211 by Debelle J at p.219 hearing an application for judicial review of orders made by a magistrate in the course of committal proceedings:

"At common law, a prosecutor has a discretion to decide what witnesses will be called for the prosecution. The manner in which that discretion should be exercised has been examined on a number of occasions: see, for example, Richardson (1974) 131 CLR 116; Apostilides (1984) 154 CLR 563; 15 A Crim R 88; Whitehorn (1983) 152 CLR 657; 9 A Crim R 107 and Harry; Ex parte Eastway [(1985) 39 SASR 203; 20 A Crim R 63]. Although the first three decisions deal with the calling of witnesses at a criminal trial, the responsibilities and functions of the prosecutor at the preliminary hearing are essentially the same as they are for prosecuting counsel at the trial: Harry; Ex parte Eastway at 211; 70-71. These decisions affirm that, although the prosecutor owes no duty to call all witnesses who will testify as to events giving rise to the offence charged, the prosecutor has a duty nevertheless to present the case in a way which is fair to the accused. The prosecutor does not have a duty to the accused but instead, a duty to the administration of justice arising out of the important role which the prosecutor performs in the process of criminal justice: Harry; Ex parte Eastway at 210; 69-70. The extent of that duty has been discussed in the cases already mentioned. For present purposes it is sufficient to note that, although the prosecutor should call all witnesses essential to the unfolding of the narrative on which the prosecution is based or whether in the result the effect of their testimony is for or against the case for the prosecution: Senevirantne (sic) [1936] 3 All ER 36 at 49, he nevertheless has a discretion not to call an eye witness where he concludes that the witness is not a credible and truthful witness: Richardson at 121; see also Harry; Ex parte Eastway at 210; 69- 70; Whitehorn per Dawson J at 674; 118-119. The discretion extends to deciding whether it is appropriate to tender a witness for cross- examination by the defence: Adel Muhammed el Dabbah v A-G (Palestine) [1944] AC 156 at 168 approved in Richardson at 120. The prosecutor should, nevertheless, disclose the evidence to the defence and give the defence the opportunity to call the witness: Richardson at 121."

See also R v. Russell-Jones [1995] 3 All ER 239 at p.245 quoted with approval in R v.
Mills [1997] 3 WLR 458 at p.465.

In its formulation of general propositions applicable to the conduct of criminal trials in Australia, the High Court in Apostilides at p.575 stated that

"A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."

The Court broadened the approach taken in Richardson by eliminating any reference to misconduct by the prosecutor as an essential condition precedent to a miscarriage of justice so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome, p.577. The learned magistrate declined to stay the proceedings.

The prosecution called the complainant, Janelle Osborne, Anita Ryan and Danielle Thomas as witnesses to the event. The defendant called the appellant, Ricky Modean, Gerald Halley, Bradley Davies and Nicole Van Berkle. The prosecution had issued subpoenas to Bradley Laurens and Jeremy Jorgenson which were not answered. The persons interviewed by Detective Morton but not called by either side but whom the defence wished to have made available for cross-examination were Peter Street, Sam Goodrich, Jason Wiley and Judy Johnston. There were other witnesses interviewed by other police who did not give evidence but the defence below possibly in the light of the learned magistrate's earlier ruling concentrated only on those mentioned. Of those Goodrich and Wiley were bartenders and Judy Johnston was the wife of the appellant. No objection is taken now to the prosecution not calling her.

The investigating officer Detective Morton was cross-examined in a most unusual way without challenge as to the contents of statements of those persons (except Mrs Johnston) not proposed to be called by the prosecution. That evidence, expanded by re-examination tended to show that they did not see the subject assault take place. It did not establish or tend to show that they were in such a position at the relevant time that it was inevitable that if the assault had occurred they must have seen it.

At the end of the prosecution case the defence renewed its application for a stay which was refused. The defence also sought to tender the statements of the persons not proposed to be called by the prosecution but interviewed by Detective Morton on the grounds of fairness but the learned magistrate declined to permit that course.

Mr Davis before this Court was unable to demonstrate that there was a significant possibility that the learned magistrate acting reasonably would have acquitted the appellant had Goodrich's, Wiley's or Street's evidence been before him, Mickelberg v. The Queen (1988-89) 167 CLR 259. The failure of the prosecution to call those or any other witnesses has not been shown to have caused a miscarriage of justice.

Unsafe and unsatisfactory

Apart from the reasons advanced in ground 1, the appellant contends that the verdict is against the weight of the evidence. The learned magistrate in his reasons noted that of the prosecution witnesses, Osborne and Thomas as well as Coates, the complainant, said they saw the appellant grab the complainant by the throat. He concluded that Osborne was very evasive in giving parts of her evidence and was not to be relied on because of her long standing relationship with the complainant and found Thomas' evidence at times unreliable and evasive and doubted that she had seen the entire incident at the bar or actually saw the appellant grab the complainant by the throat as she had said. He noted that although subjected to cross-examination which lasted almost a whole day Coates "remained adamant" that the appellant had grabbed him by the throat and forced him back. He concluded that while not impressive at times in the witness-box he accepted that Coates' account of the incident at the bar was reliable because it was corroborated by Anita Ryan.

The learned magistrate was impressed by Anita Ryan's manner of giving evidence accepting that she made an effort to give evidence only of what she had seen. This seems to have been in contrast with some of the other witnesses. He had a body of evidence that this incident had been much discussed and considered in the small community in which it had occurred. He regarded Ms Ryan as totally reliable and it is this reliance particularly as to the way in which the learned magistrate said that her evidence corroborated that of the complainant that the appellant argues makes the verdict unsafe and unsatisfactory when taken in conjunction with other evidence.

Anita Ryan (by the time of the trial married to Peter Street a friend of Coates) was sitting at a table facing the bar adjacent to the area of the bar where the altercation occurred. She said she saw Ryan Johnston and Coates talking but could not hear what they were saying because of the noise of the band. She then saw the appellant place his hand on the complainant's chin or throat. She immediately looked away searching for her boyfriend very anxious that he should not get involved in any fight should one eventuate. She became conscious of people in the area pushing and shoving but continued to look around for Peter Street. In cross-examination it was established that she did not see the complainant pushed sideways or thrown backwards and conceded that the appellant may have gone very close while "yelling" at Coates without actually touching or grabbing him. She agreed that if Coates' head had jerked back or he had slid sideways at that moment she would have seen it and she did not. It was not Coates' evidence that his head jerked back or that he slid sideways and one of the shortcomings in examination-in-chief and cross-examination was putting scenarios to the witnesses which did not accurately reflect the evidence of the complainant or the appellant. Coates' evidence was that he was grabbed near the lower chin and was pushed backwards a few metres. Consequently the forensic value of Ms Ryan's answer was diminished.

The incident, according to Coates, took 5 or 6 seconds. In re-examination Ms Ryan said that the appellant's hand looked as though it touched Coates "but may have just been so close that he didn't" (R172). She demonstrated the movement of the appellant's hand in relation to the complainant. The demonstration was not put onto the record but the learned magistrate in his reasons noted "Her version of events was that she did see the defendant move his hand out towards - forward and towards the complainant's throat area in a grabbing motion. At the time of giving that evidence, my recollection of the witness was that she demonstrated by putting her hand out in front of her with her fingers and thumb in a horizontal position in a grabbing motion." (R343)

This was a quite different movement from that described by the appellant of flicking his hand up in the face of the complainant. The learned magistrate particularly noted that none of the defence witnesses supported the appellant's evidence on this point. It was unnecessary to find against them on a matter of credit as was contended for by Mr Davis. It was sufficient that he considered them, as he clearly did, unreliable on this matter. Gerald Halley's evidence was that he saw "no finger pointing or nothing" and would have "seen any hands coming up" (R275) but observed a verbal argument between the appellant and the complainant before he looked away. Nicole Van Berkle was seated near the end of the bar where the incident occurred. She said that she was watching the encounter between Coates and Ryan Johnston because of something that Coates had said to her. She saw only words exchanged between the appellant and Coates and did not see him touch Coates. She said that there was no pushing and shoving and she did not take her eyes off the appellant and Coates while they were having words. The learned magistrate noted that she did not see the appellant wave his hand in the face of Coates.

Bradley Davies was a bar manager at the Club. His evidence was that he did not even see the appellant and Coates "having words". Neither did he see any kind of melee or pushing or shoving and that he would have done so had it occurred. He denied seeing a flicking motion with the hand such as described by the appellant but agreed that an apparently minor gesture (as demonstrated in re-examination by Mr Garrahy, solicitor, who appeared below for the appellant) might have been missed. He agreed also that he was occasionally away clearing tables and collecting glasses.

Ricky Modean, President of the Club saw no incident between the appellant and Coates. His evidence was that they were nowhere near each other in the course of the evening. He said he would have seen a fight had it occurred or any pushing and shoving, but his evidence that the appellant and Coates were nowhere near each other was against both sides' account of what occurred and could safely be disregarded.

Mr Davis has contended that the event seen by Ms Ryan in which the appellant extended his hand towards Coates was a different event from that alleged by Coates. The learned magistrate saw the demonstration by her and concluded that it was the same as that described by Coates and materially different from that described by the appellant and for that reason accepted her evidence as corroborating that of Coates.

The learned magistrate was confronted with a number of witnesses whose evidence was unsatisfactory or unreliable in a number of ways. The hearing was conducted over some 4 days between the 10 December 1996 and the 19 February 1997 with three different prosecutors appearing before him. He described the trial as "a long drawn out affair" and it is not difficult to agree with him as a number of incidents separate from the subject assault were explored at length. There is nothing in his reasons which demonstrates an incorrect approach to the evidence and nothing in the evidence when read in its entirety which ought to have caused the learned magistrate to have entertained a reasonable doubt about the guilt of the appellant, M v.The Queen (1994) 181 CLR 487. In a case of this kind the advantage of seeing and hearing the witnesses must be thought considerable.

We would dismiss the appeal.