Mulcahy v The Queen
[2012] ACTCA 3
•January 31, 2012
RICHARD MULCAHY v THE QUEEN
[2012] ACTCA 3 (31 January 2012)
CRIMINAL LAW – appeal and new trial – appellant convicted of assault occasioning actual bodily harm – whether appellant acted in self-defence – whether verdict unsafe and unsatisfactory – whether trial judge erred in use of prior inconsistent statements – consideration of s 60 of the Evidence Act 1995 (Cth) – appeal dismissed
Evidence Act 1995 (Cth) ss 60, 136
M v The Queen (1994) 181 CLR 487
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
Lee v The Queen (1998) 195 CLR 594
R v Welsh (1996) 90 A Crim R 364
Quick v Stoland Pty Ltd (1998) 87 FCR 371
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 38 of 2010
No. SCC 364 of 2008
Judges: Refshauge, Burns and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 31 January 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 38 of 2010
) No. SCC 364 of 2008
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: RICHARD MULCAHY
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge, Burns and Lander JJ
Date: 31 January 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 38 of 2010
) No. SCC 364 of 2008
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: RICHARD MULCAHY
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Burns and Lander JJ
Date: 31 January 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The appellant appeals against a conviction for assault occasioning actual bodily harm on Mr Gerhard. The conviction was entered on 7 September 2010 following reasons published on 26 August 2010 by the trial judge. The trial was a trial by judge alone. The appellant was sentenced to enter into a good behaviour bond for a period of 12 months. There is no complaint about the sentence.
The grounds of appeal are:
(1) The decision to convict was unsafe and unsatisfactory.
(2)The decision to convict was against the evidence and the weight of the evidence.
(3)The learned trial Judge failed to take into account relevant matters namely:
(a)The injuries caused to the Appellant
(b)The cross-examination of Robert Mackey
(c)The fact that Scott Mackey did not see:
(i)The whole of the incident
(ii)Nicholas Gerhard approach the Appellant
(4)The complete evidence of Dr Andrew Black and Dr Stephen McGowan.
Ground (4) does not make sense if it is considered as a free-standing ground. However, we think it is meant to be a further particular of Ground (3), and we have treated it as that. We have assumed that the complaint is that the trial judge failed to take into account the complete evidence of Dr Black and Mr McGowan.
The first ground requires this Court to ask itself whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ. In carrying out that exercise this Court will not simply consider whether there was evidence before the trial judge which would support the verdict. That is a different question – a question of law. Ground
(1) requires this Court, independently of the trial judge, to assess the evidence and decide for itself whether, notwithstanding there was evidence upon which the trial judge could convict, it would be dangerous to allow the trial judge’s verdict to stand: M v The Queen at 493 per Mason CJ, Deane, Dawson and Toohey JJ.
If after carrying out that exercise a Court of Appeal has a doubt, that doubt should have been in the mind of the trial judge. If this Court concludes that the verdict is unsafe or unsatisfactory, then the verdict must be set aside and this Court will enter a verdict of acquittal. In those circumstances, Grounds (2) and (3) will not need to be addressed.
If, on the other hand, this Court concludes that Ground (1) cannot be upheld, and that the verdict should stand, Grounds (2) and (3) will also not need to be addressed. If the Court concludes that on the whole of the evidence the trial judge was right to be satisfied that the accused was guilty, the Court will have addressed Grounds (2) and (3) because, of course, the trial judge’s verdict could not have been against the evidence and the weight of the evidence, and even if the trial judge has failed to take into account the evidence identified in Ground (3) this Court will have done so and still concluded that the verdict of guilty was not unsafe or unsatisfactory. For the reasons mentioned earlier, that means Ground (4) will also have been addressed.
The appellant did not dispute that he struck the complainant, Mr Gerhard, or the nature of the injuries suffered by the complainant as a result of being struck. The issue before the trial judge was whether the appellant acted in self-defence in response to actions taken by the complainant towards him. So much was made clear by the appellant’s senior counsel at trial (who was also counsel on appeal) in answer to a question from the trial judge at the conclusion of the Crown opening.
The Crown had the burden of disproving that the appellant acted in self-defence, and no onus lay upon the appellant to prove his defence.
The trial judge found that the Crown had discharged its burden and that the complainant was the victim of an unprovoked and unjustified assault by the appellant.
The trial judge directed himself so as to ensure that the appellant had a fair trial. There is no complaint about the directions which his Honour gave himself and, in particular, there is no complaint that his Honour recognised that the burden of proof lay entirely upon the Crown. The directions which he gave himself in relation to the elements of the offence and the burden of proof in relation to the question of self-defence were in accordance with Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, and were not challenged on the appeal. They were:
[24]In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt. The essential elements of the charge against the accused are (1) that he assaulted the complaint [sic], and (2) that, as a result of that assault, the complainant suffered actual bodily harm. As I have said already, the accused admits that he punched the complainant’s face, an act which is an assault, and that, as a result of the punch, the complainant suffered lacerations to the upper lip and head, which injuries amounted to actual bodily harm.
[25]However, as I have said already, the accused claims that what he did was justified because he acted in self-defence to the actions of the complainant towards him. The law recognises the right of a person to act in self-defence against an attack, or the threat of an attack, by another person. This right arises when the person believes that the use of force is necessary, in order to defend him or herself against an attack, or the threat of one, by another person, and what the person did in defending him or herself against that attack, or the threat of it, was a reasonable response in the prevailing circumstances as he or she perceived them to be.
[26]The accused does not need to prove that he acted in self-defence, rather the Crown must prove that the accused did not act in self-defence. The Crown may prove that the accused did not act in self-defence by proving either:
(1)that the accused did not believe at the time of doing what he did that it was necessary to do what he did, in order to defend himself; or
(2)if he had such a belief that, nevertheless, what the accused did was not a reasonable response to the prevailing circumstances, as he perceived them to be.
Facts
The incident occurred at about 4.45pm at the green waste area of the Mugga Lane tip, also known as Corkhill Bros Waste Recycling Facility. Both the complainant and the appellant were in their separate cars at the tip immediately prior to the incident the subject of the charge.
There was a dispute as to which of the two cars had arrived first. His Honour found that the complainant arrived first in his car, and that the complainant was sitting in the car which was stationary in a line of cars when the appellant’s car, which was being driven by the appellant’s wife and in which the appellant was seated as a passenger in the front left-hand side of the vehicle, was driven along past the line of stationary cars.
The fact that the appellant’s wife drove past those stationary cars caused the complainant to say something. There was a dispute as to what he said. According to the complainant he said, “You know, let’s do this in an adult fashion, or a mature fashion.” According to the appellant the complainant said, “What the fuck do you think you are doing, you stupid cunt? Why don’t you wait your turn?”
The trial judge did not resolve the dispute between the complainant and the appellant as to the actual words used by the complainant, but he did not need to. It was common ground that the complainant said something, and that as a result of what was said the appellant got out of his car and went to the complainant’s car and spoke to the complainant.
The complainant, the appellant, the appellant’s wife, and two other witnesses gave evidence as to what the appellant said to the complainant. The complainant said that the appellant called him a “fucking fag”. A witness, Mr Benyei, said that he heard the appellant say, “you faggot”, although he did agree in cross-examination that the appellant might have used the word “maggot”.
The appellant said that he said, “Shut your mouth, you fucking maggot. Leave us alone.” The appellant’s wife said that the appellant said, “Mind your own business, you fucking maggot.”
The trial judge did not resolve exactly what was said by the appellant, but again he did not need to.
He said, and there is no dispute about the finding, that whatever was said it was offensive and likely to provoke a response from the complainant. In fact it did. The complainant got out of his car and walked towards the appellant who was walking away from the complainant’s car. The complainant’s evidence was that he said, “What’s going on here?” The appellant then turned and walked towards him. The appellant said that he heard the complainant say, “What’s going on? Where are you going?” which caused him to turn around towards the complainant, who he then said had left his car and was walking towards him.
The appellant’s wife said that she heard the complainant say, “You want trouble? You have fucking found it.”
The trial judge found that the complainant (which in paragraph [39] of his reasons he has wrongly referred to as the accused) said, “What’s going on here?” He rejected the version given by the appellant, and the different version given by the appellant’s wife.
What happened next was also the subject of some dispute.
The claimant’s evidence was that the appellant turned around and walked back towards him and said, “Go on, have a fucking go. Take me.” The complainant said that he replied, “Why would I?” and he put his hands up with his arms bent at the elbows with his hands at his shoulders and his fingers pointed upwards and his palms facing forward. He said that was when he was hit by the appellant and he fell back, hit his head on a rock and was rendered unconscious.
Mr Robert Mackey, who was at the tip with his son Scott, said that he saw the appellant walk towards the complainant’s car, and that the complainant opened the driver’s door and got out. He saw the complainant step backwards with his arms at his side and the palms of his hands facing forward. He said the appellant stepped forward. Next he saw the appellant with his right arm extended forward with his hand formed in a fist standing over the complainant’s body on the ground.
Scott Mackey first saw the complainant and the appellant when they were standing at the driver’s door of the complainant’s car. The appellant was yelling and punctuating his words with hand gestures. He saw the complainant back away from the appellant with his hands by his side, and then raise his hands from his waist so that his arms were bent at the elbows with his fingers pointing upwards and his palms facing forward. He said he saw the appellant step forward and hit the complainant in the face with a closed fist. The complainant then fell to the ground.
The versions offered by the complainant and Robert and Scott Mackey are very similar to each other, but quite different to that offered by the appellant.
The appellant said that the complainant had called out, “What’s going on? Where are you going?”, and the appellant had turned around to face the complainant. The complainant had walked up to him and pushed him hard in the chest, which caused the appellant to put up his hands.
The appellant said that when he put up his hands he said, “Don’t touch me. Don’t touch me.” He said that the complainant grabbed the top of his right arm at the shoulder with his left hand and the complainant raised his right arm such that the appellant feared that the complainant was about to hit him. The appellant hit the complainant with his right fist while the complainant was holding his right upper arm at the shoulder.
The appellant’s wife said that after she heard the appellant say, “Mind your own business, you fucking maggot” to the complainant, the appellant turned around and walked back towards their car. The complainant got out of his car and said to the appellant, “You want trouble? You’ve fucking found it.” As we have already said, the trial judge rejected that evidence.
The appellant then turned around to face the complainant. The appellant’s wife said that the appellant and the complainant became close to each other and the complainant pushed the appellant hard to the right side of the appellant’s chest with his left hand which caused the appellant to say, “Don’t touch me.” The complainant then grabbed the top of the appellant’s right shoulder twice with his left hand, and then raised his right arm with his right hand making a fist, at which time the appellant struck the complainant on his chin with his right fist and the complainant fell to the ground.
The trial judge needed to resolve the conflict in the two accounts. On the accounts given by the complainant, Mr Robert Mackey and Mr Scott Mackey it could not be said that the appellant was acting in self-defence.
On the account given by the appellant and his wife, it might be said that the Crown had failed to negate the appellant’s claim of self-defence.
The trial judge considered four previous statements that had been given by the appellant. These statements were to Constable Lockley at 5.10pm on 2 December 2007; to Mr McGowan, an osteopath, on 4 December 2007; to Dr Black, the appellant’s general practitioner, on 7 December 2007; and to the appellant’s solicitor by email transmission on 12 May 2008.
The first statement was made to Constable Lockley within half an hour of the incident occurring. The appellant attended at the Woden Police Station and made a statement which Constable Lockley reduced to a handwritten note. The note is:
1710- Richard James MULCAHY 141 Julia Flynn Cres Isaacs 2607 DOB – 16 MAR 1956
-Mulcahy stated that a male driving YDE56C was being aggressive towards him and approached and placed his hand on his chest
-Mulcahy stated that he believed the male was going to assault him and he was fearful for his safety when the male approached him again and Mulcahy struck him on the chin.
-Mulcahy then walked away.
-The whole [sic] Mulcahy was using clear verbal directions to get back and not touch him.
…
-I told Mulcahy that if what he told me was the truth that assault charges shouldn’t but may be pursued.
-Mulcahy was very upset and confused.
1800End of Duty.
The trial judge observed that the statement made to Constable Lockley was inconsistent in a number of respects with the appellant’s evidence. The appellant told Constable Lockley that the complainant “placed” his hand on his chest. He did not say that the complainant grabbed his right arm at the shoulder or raised his right arm to make a fist. The appellant told the police officer that the complainant approached him twice.
The second statement was given to Mr McGowan on 4 December 2007. The appellant and his wife had been consulting Mr McGowan for about 11 years, averaging 8 to 10 visits a year. Mr McGowan said the appellant told him:
Could you tell his Honour what he told you?---He told me that he’d been involved in an altercation at the Mugga Lane tip and that he, his wife and daughter had gone to the tip and with the purpose of dropping off some gardening refuse, some lawn clippings. While approaching the area to do that his passage was blocked by another vehicle and that a car alongside – a gentleman in a vehicle alongside had been motioning or waving to them and he pulled down the window and received some verbal abuse with regard to queuing etiquette at the tip. Then I gather some harsh words were exchanged and that Mr Mulcahy alighted from his vehicle and was approached by this gentleman to further continue the disagreement on rubbish tip etiquette. More words were exchanged. I understand that Mr Mulcahy was pushed in the right upper chest and that Mr Mulcahy who had had a previous experience of having been assaulted at a rodeo some years previously.
MS McMURRAY: I object to that.
HIS HONOUR: No. It’s part of the history?---He was pushed in the chest. He asked the gentleman to cease by saying, “Don’t touch me don’t touch me” which he uttered loudly. And the follow [sic] grabbed his shoulder and ---
Did he say which shoulder?---His right shoulder – grabbed his right shoulder and raised an arm, which Mr Mulcahy, I believe, interpreted as being that a blow was about to come forth. He told me that he acted in self-defence and the other gentleman was knocked to the ground.
MR PURNELL: Did you then ---
HIS HONOUR: Just before you go on, Mr Purnell, you said “Mr Mulcahy said that he acted in self-defence”, but did he tell you what he did?---I believe ---
No, did he tell you what he did?---Yes a blow was struck to the chin was what I recall.
So did he say something like, “I punched him to the chin”?---That is my understanding.
As distinct from your recollection?---That is my recollection.
Mr McGowan made some observations. He said:
And what did you observe, if anything, on examination?---On examination I observed some puffiness oedema in the infraclavicular area of the upper chest, so just below the collarbone over towards the right shoulder. So this area here.
Did you observe any marks upon his body?---There were marks on his right anterior deltoid muscle and bicep muscle that were evident to me.
On his presentation did he tell you, before you examined him, whether he was aware or not aware of those marks?---He was not aware of those – those marks.
Did you give him some forensic advice, if I can put it that way, in terms of what he should do?
HIS HONOUR: Did he tell you to take a photograph?
MR PURNELL: Yes, thank you, your Honour.---Yes, I urged him to have a photograph taken.
And did you also urge him to go and see a doctor?---I urged him to see his physician and have a photograph taken and I believe that the soonest appointment that he could get was not until the Friday of that week. I was seeing him on the Tuesday.
He was allowed to express an opinion as to the possible cause of the bruises which he said were consistent with the bruises shown in the photograph:
THE WITNESS: They’re consistent with force having been applied to a shoulder area, as in a grasping of a shoulder. That’s my experience.
HIS HONOUR: Can you explain why there are five fingerprint marks on top of the – two on the top of the arm and three on the side of the arm?---I – I can’t explain why there are ---
Five instead of four?---Sure.
I suppose it could be that they were grabbed twice, coincidentally four of them were in the same spot?---That is a possibility, but I did massage that area of the shoulder myself at that consultation. So pressures were applied by me to that area, and ---
So you might have caused one of those marks?---It’s a possibility.
Tell me, Mr McGowan, Mr Mulcahy demonstrated in court grabbing of the left arm with the right hand, the right arm with the left hand, with the thumb under the armpit and the four fingers below the tip of the shoulder. But those photographs show two marks above the tip of the shoulder?---I – I confess to having done deep tissue massage on that area, which is what was appropriate for the treatment of a chromioclavicular glenohumeral joint restrictions and muscle spasm in that region. So this is just a possibility that – that I contributed. I’m not trying to muddy the water, I’m just telling you what I did in the course of appropriate treatment for the condition – presenting condition.
The trial judge was not impressed with Mr McGowan’s evidence as to the cause of the bruising. The trial judge noted that the photographs showed some seven and possibly eight bruises on the accused’s right upper arm/shoulder, and one bruise in the accused’s right armpit. Shortly after the appellant saw Mr McGowan the appellant’s wife took photographs of the appellant’s chest and right upper arm showing the inner and outer aspects of that arm. Those photographs were tendered at the trial by the appellant.
The third statement was given to Dr Black, who the appellant consulted at the Oasis Medical Centre in Canberra on 7 December 2007. Dr Black was called by the appellant. Dr Black said that the appellant had “been approached by another man and he thought he’d possibly been pushed, but then he really [did not have] a very clear recollection of either of that and certainly of any further – what happened and what transpired further”.
Dr Black said that he:
noted small circular bruises about 1cm in diameter and there were at least four of them over his shoulder and another one in his armpit that may have been slightly bigger. There was possibly also another bruise on the upper part of his chest, which wasn’t quite as obvious. And those are evident on looking at the photos of which he also took.
Dr Black’s clinical notes, which included a diagram, were tendered. The diagram showed the four bruises on the complainant’s right upper arm and one in the inner aspect of the arm near the armpit and a bruise on the right side of the chest. His notes stated that the haematoma was consistent with possible injury from being pushed.
Dr Black’s assumption was that the complainant had pushed the accused in the right upper chest using his open left hand. Dr Black said in relation to that:
So, in other words, pushed by an open arm against his chest … I am not sure open hand. I mean it is conceivable that he was pushed with a hand out and it was with sufficient force that the fingers made bruises. That’s what I came to. I can’t be sure, you know, he was clear as to what happened.
The trial judge was unimpressed with Dr Black’s evidence, which he believed was implausible because Dr Black’s only assumption was that there was a push. If there was a push with an open left hand to the chest, the hand could not have made the marks to the outer and inner aspects of the appellant’s arm. The trial judge reasoned that, absent an assumption that there was a grab to the arm, Dr Black’s evidence was implausible.
The fourth statement was contained in an email sent by the appellant to his solicitor on 12 May 2008. In that email the appellant wrote:
I turned and walked away from the blue Suzuki to our vehicle to get our rubbish. The driver of the blue Suzuki left his vehicle and approached me saying “Where are you going?” I turned and faced him, “Sorry, I’ll just go to the next line.” The accosting started and he said “You want trouble? Well, you fucking found it” and suddenly he put his hands on my chest, pushing me. I took a step back and said loudly “Don’t touch me”. He suddenly reached out again and I repeated “Don’t touch me”. The man pushed me several times in my right chest and right shoulder area. He was hurting me. And then he moved again. I instinctively threw my right arm up to defend myself and punched him once in the face.
Consideration of Appeal
The trial judge noted the inconsistency between that statement and the appellant’s evidence. In the email statement the appellant said he was pushed several times in his right chest and right shoulder area. He did not complain of being grabbed by his right upper arm or shoulder or that the complainant had raised his right arm towards him. The version, the trial judge said, was different from the version given to Constable Lockley, Mr McGowan and Dr Black.
The trial judge, having addressed the discrepancies and inconsistencies in the various statements and compared those statements with the appellant’s own evidence, concluded that in view of the inconsistencies and the five different versions, including the appellant’s evidence, he could not accept the version that the appellant gave in his evidence.
The trial judge next addressed the version given by the appellant’s wife, and compared that evidence with a statement she had given to the appellant’s solicitor by email on 12 May 2008 that did not include an account of the complainant twice grabbing the top of the accused’s right shoulder in his left hand or the complainant raising his right arm with his right fist.
The trial judge therefore rejected the evidence of the appellant’s wife as to the circumstances in which the appellant struck the complainant.
He addressed the complainant’s evidence. He recognised the complainant as a person who had “an axe to grind or a barrier [sic] to push”, but nevertheless was impressed by him as a witness.
He described the complainant at [51] as follows:
He was calm, composed and careful when giving evidence. He was not emotional or theatrical. He was not caught out or undermined when cross-examined. Although I realise that he left his car to speak with the accused in response to what the accused had said to him, I accept that he was not aggressive towards the accused. Notwithstanding the criticism of him by counsel for the accused, I consider the complainant has given accurate and truthful evidence. I accept his evidence.
The trial judge also accepted the evidence of Mr Robert Mackey and Mr Scott Mackey, both of whom he said were “calm, composed and careful” when giving their evidence, and both of whom remained unscathed in cross-examination.
He also accepted the evidence of Mr Benyei, who, although did not see and hear everything that happened, gave evidence that was generally consistent with the evidence of the complainant, Mr Robert Mackey, and Mr Scott Mackey.
As a consequence of accepting the witnesses to whom we have referred, the trial judge made the following findings (at [56]–[60]):
I am satisfied beyond reasonable doubt of these facts:
(1) The accused called the complainant “fag” or “faggot” or “maggot”.
(2) The complainant left his car, walked towards the accused and said “What’s going on here?”.
(3) The accused said to the complainant “Go on, have a fucking go. Take me”.
(4) The complainant said “Why would I?”, stepped backwards away from the accused and raised his arms, bent at the elbows with his hands at his shoulders, his fingers pointing upwards and his palms facing forward.
(5) The accused stepped forward towards the complainant and punched the complainant’s face with his closed right fist.
(6) The complainant fell backwards, hitting the back of his head on a rock on the ground.
(7) The complainant suffered a laceration to his left side of his upper lip and a laceration to the back of his head.
I am satisfied beyond reasonable doubt that the accused’s assault upon the complainant was unprovoked and unjustified.
I am satisfied that the complainant did not push the accused to his chest once or more with either hand; that the complainant did not grab the accused’s right upper arm at the shoulder with his left hand; and that the complainant did not raise his right arm, as if to punch the accused.
I am satisfied that the issue of the accused acting in self-defence against the actions of the complainant does not arise because the complainant had not done anything to him to cause him to believe that he had to use force to defend himself.
I find the offence proved beyond reasonable doubt.
The appellant’s counsel addressed the four previous statements made by the appellant and contended that the trial judge was wrong to use those statements for the purpose of assessing the appellant’s credibility. He also argued that, as Ground (4) states, the trial judge failed to have regard to the whole of the evidence of Dr Black and Mr McGowan. Both those contentions should be rejected.
The appellant’s counsel contended on appeal that the primary judge had been unduly critical of Mr McGowan, the osteopath, and Dr Black, the appellant’s general practitioner, and had failed to have regard to objective evidence that showed that the appellant had suffered bruising to his right upper arm consistent with the appellant’s account. It was contended that if the trial judge had had regard to the objective evidence he could not have dismissed the evidence of Mr McGowan and Dr Black, or rejected the evidence of the appellant and the appellant’s wife.
At the trial the appellant tendered two photographs of himself which depicted the right hand side of his chest and his right upper arm. Those photographs were taken on 4 December after the appellant had visited his osteopath, Mr McGowan.
Those photographs did not show any bruising or injury to the right hand side of the appellant’s chest. They did show bruising to the shoulder and outer aspect of the upper arm. That bruising was consistent with finger marks, but there were more than four bruises and there might have been as many as eight.
There was also an additional bruise, which was to the inner aspect of the right upper arm just outside the right armpit. That bruising was observed by both Mr McGowan and Dr Black, both of whom said it was consistent with a grabbing of the upper arm.
In those circumstances, it was contended, the trial judge was wrong to reject Mr McGowan and Dr Black’s opinions.
However, the difficulty with the photographs is that they do not support the appellant’s contention and indeed they are inconsistent with the versions given by the appellant and the appellant’s wife, which was pointed out to counsel during the appeal. The bruise mark that was allegedly made by the thumb (because of its position relative to the bruise marks said to be made by the fingers) could not have been made by someone grasping the appellant with the left hand.
Accordingly, the photographs do not support the appellant’s evidence or the evidence of the appellant’s wife that the appellant was grabbed by the complainant using his left arm. Moreover, the bruise marks do not support, as was initially contended by the appellant’s counsel, that the appellant had been grabbed twice. If he had been grabbed twice there would not only be further finger marks, but also a further thumb mark. There was only one mark which could have represented a thumb mark. The only explanation for there being only one thumb mark, which eventually the appellant’s counsel agreed was implausible, was that the complainant must have put his thumb in exactly the same spot on the two occasions that he grabbed the appellant’s right arm, assuming these photographs were a proper depiction of what occurred. The appellant’s counsel recognised the difficulties with the photographs during the argument on the appeal.
Moreover, if in fact these bruise marks represent the complainant using his right arm then that evidence would contradict in a material particular both the appellant’s evidence and the evidence of his wife that the complainant had made a fist with his right arm immediately before the appellant struck the complainant.
The objective evidence is of no assistance to the appellant.
Mr McGowan sought to explain the further bruise marks by suggesting that he (Mr McGowan) might have caused them himself when he massaged the appellant’s arm at the consultation. The trial judge said that he did not find that evidence to be persuasive. In our opinion, for the reasons already mentioned, that is a mild criticism of that evidence. It is clear that Mr McGowan offered the evidence to justify the opinion.
The trial judge rejected Dr Black’s opinion because Dr Black had only assumed that there had been a push. In those circumstances, the trial judge rejected Dr Black’s opinion that the fingers could have caused the number of bruise marks on the outer and the single bruise mark on the inner aspects of the appellant’s right arm. In our opinion, the trial judge was undoubtedly right to reject Dr Black’s opinion for that reason. Once Dr Black made the single assumption that there was only one push, his evidence was incapable of justifying the opinion that the bruise marks to the right arm were caused at the time of the push.
We agree with the trial judge’s assessment of the evidence of Mr McGowan and Dr Black insofar as they offered an opinion that the bruise marks in the exhibit were consistent with either a single grabbing of the right arm or a push.
In our opinion, for the reasons that the trial judge stated, there were serious inconsistencies between the evidence proffered at trial by the appellant and his wife, and the four separate accounts given by the appellant and the single account given by the appellant’s wife before trial.
In our opinion those inconsistencies were sufficient for the trial judge to arrive at the conclusion that the evidence of the appellant and his wife was unreliable, and to prefer the evidence of the complainant and the independent witnesses who supported the complainant’s evidence.
The first version, which was given to Constable Lockley within half an hour of the incident, makes no mention of the appellant having been pushed in the chest, or of the appellant’s right arm having been grabbed by the complainant. The only force which was applied to the appellant in his version to Constable Lockley was that the complainant, he said, placed his hand on the appellant’s chest, which caused the appellant to think that the complainant was about to assault him.
The differences in the appellant’s evidence and the appellant’s account to Constable Lockley are so marked as to cast serious doubt on the account given by him at trial.
The trial judge also used the fourth statement for rejecting the version of the event given by the appellant and his wife. The fourth version was, as we have noted, given in an email transmission on 12 May 2008 to the appellant’s solicitor, which is some six months after the event. This version was given after the appellant had been told by Mr McGowan that he had bruising to his right arm and had his wife take photographs of those bruises, and had undergone a consultation with Dr Black.
In this version the appellant said that he was pushed several times in the right chest and right shoulder area which hurt him. This version is seriously at odds with the evidence given by the appellant and the appellant’s wife at trial. On the account given to the appellant’s solicitors the appellant was pushed several times in the chest, and there was no complaint that he was grabbed by the right arm, but merely pushed in the right shoulder area.
Moreover, in this version he says that he threw his right arm up instinctively to defend himself. Again this is inconsistent with a deliberate punch which, on his evidence, was made to defend himself. Again, the trial judge was entitled to rely upon the serious differences in this account and the appellant’s evidence in finding that the appellant’s evidence and that of his wife was unreliable.
The Crown did not call Mr McGowan or Dr Black, but they were called by the appellant as experts to offer an opinion that the bruising they observed was consistent with the appellant being grabbed by the right arm. For the reasons already mentioned, the trial judge was right to reject their opinions.
As mentioned earlier, the trial judge also used the accounts given by the appellant to Mr McGowan and Dr Black for the purpose of concluding that the appellant’s evidence and that of his wife was unreliable.
The accounts that the appellant gave to Mr McGowan and Dr Black were hearsay. At common law the statements could not have been tendered to prove the truth of the accounts given by the appellant. However, the statements were tendered by the appellant for the purpose of proving the factual basis upon which Mr McGowan and Dr Black based their opinions.
Section 60(1) of the Evidence Act 1995 (Cth) states that “[t]he hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.” In Lee v The Queen
(1998) 195 CLR 594, the High Court stated unanimously (at 604; [40] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) that “[i]t is ... clear that s 60 was intended to work a considerable change to the common law.” Similarly, in R v Welsh
(1996) 90 A Crim R 364, Hunt CJ at CL stated (at 369) that
[e]vidence of the history taken by a doctor has always been admissible, as I say, as establishing the basis upon which the doctor framed the expert evidence to be given by him or her in evidence, but not (except for statements of the type now made admissible by s 72) in order to establish the truth of what was said. As a result of s 60, evidence by a doctor of the history given to him or her by the patient and upon which the doctor bases his or her expert opinion is therefore now evidence of the truth of that history. This is so whether or not the facts stated in the history were at the time of giving the history fresh in the patient’s mind, whether or not the history was given in circumstances which made it highly probable that it was reliable or which made it unlikely to be a fabrication, and whether or not what was said was within the patient’s personal knowledge – unless an order is made limiting the use which may be made of that evidence pursuant to s 136. All of this is very relevant to the weight to be given to the history where there is no other evidence supporting it (footnote omitted).
Hunt CJ at CL went on to observe (at 369) that s 60 has “extraordinarily wide ramifications”.
The statements made by the appellant to Mr McGowan and Dr Black were relevant to prove the factual basis for the opinions expressed by Mr McGowan and Dr Black. However, by operation of s 60, the hearsay rule did not apply. It follows then that the trial judge was entitled to rely upon those statements for the purpose of assessing the appellant’s credibility, notwithstanding that the appellant was never cross-examined on whether he made the statements to Mr McGowan and Dr Black, or whether in fact the statements were true.
While in the end result the evidence is left in an unsatisfactory state, we do not think this is a case where the trial judge should have limited the use to which the statements were put pursuant to s 136 of the Evidence Act. Section 136 provides:
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
In Quick v Stoland Pty Ltd (1998) 87 FCR 371 Branson J said (at 377–8) that
[i]t is not necessary in the context of this case to give detailed consideration to the circumstances in which, and the extent to which, evidence of the factual basis of an expert opinion will amount to evidence of the truth of that factual basis: cf Eastman v The Queen (1997) 76 FCR 9 at 78–79. It may be that a different result will follow depending upon the form in which the expert gives evidence of the factual basis of his or her opinion; that is, whether such evidence is given in the form of a representation or, alternatively, in the form of an identification of a hypothetical assumption. If s 60 of the Act does operate to give mere form significance in this way, the result cannot be regarded as entirely satisfactory. In cases in which there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 of the Act by exercising the power vested in it by s 136 of the Act.
In the same case Finkelstein J said (at 382):
In many cases the extraordinary effect of s 60 would be unfair to the party against whom the evidence is tendered. For example, where the hearsay involves ‘facts’ that are in conflict or ‘facts’ that are unreliable it is quite unsatisfactory for those ‘facts’ to be proved by operation of s 60. One way in which this problem can be overcome is by an order under s 136 limiting the use to be made of that evidence.
Section 60 is an unsatisfactory section that has the potential to cause significant unfairness to the party against whom the evidence is tendered. However, in the present case it was the appellant who led the statements, presumably knowing that they could be relied upon for their testimonial effect.
The appellant did not ask the Court to limit the use of the evidence so that the evidence could not be used for its testimonial effect. Nor did the appellant’s counsel argue on this appeal that the trial judge was not entitled to use the evidence for its testimonial effect. In these circumstances we do not think it was incumbent on the trial judge in this case to utilise the power under s 136 to limit the use to which the statements could be put.
The four statements relied upon by the trial judge established, as the trial judge said, that the appellant’s evidence and that of his wife was unreliable. In our view the trial judge was entitled to rely upon the statements to Mr McGowan and Dr Black for the purpose of assessing the appellant’s credibility.
Once the trial judge accepted the Crown case, his Honour was entitled, and indeed bound, to conclude that the Crown had discharged the onus of proving that the appellant had not acted in self-defence.
The inconsistencies between the appellant’s evidence and his previous statements, and the evidence of the appellant’s wife and her previous statement, were sufficient for the trial judge to conclude that their evidence was unreliable.
Although the trial judge did not use the evidence contained in the photograph as evidence inconsistent with the evidence of the appellant and the appellant’s wife, this Court may on appeal use that evidence for the purpose of concluding that the verdict arrived at by the trial judge was not unsafe or unsatisfactory.
The appellant’s counsel took the Court to the evidence of the complainant and Mr Robert Mackey and Mr Scott Mackey for the purpose of showing the evidence to be unreliable. In our opinion the appellant did not make out, as counsel contended, that the evidence was in any material respects unreliable. Indeed, a reading of the evidence of all three shows that those witnesses were careful. In particular, the evidence of Mr Robert Mackey and Mr Scott Mackey shows that both witnesses confined their evidence to actual observation, and neither witness made any attempt to embellish their evidence or offer evidence that was a reconstruction.
In our opinion the trial judge was entitled to accept the evidence of the complainant and the evidence of Mr Robert Mackey and Mr Scott Mackey, which evidence was entirely consistent with the complainant’s own evidence, and at the same time reject the appellant’s evidence, and that of his wife, which was irreconcilable with the evidence that the trial judge accepted.
There was, of course, no onus upon the appellant to establish that he acted in self-defence; the onus was always upon the Crown to establish that he did not act in self-defence. In our opinion, the Crown established to the requisite standard that the appellant had not acted in self-defence.
The appellant has not shown that the verdict is unsafe or unsatisfactory. Moreover, the appellant has not shown that the trial judge’s conclusions were against the evidence or the weight of the evidence. The appellant has not made out the remaining grounds relating to the specific evidence of the appellant, Mr Robert Mackey, Mr Scott Mackey, Dr Black, and Mr McGowan.
The appellant was represented by senior counsel who appeared both at trial and on appeal. Written submissions were provided by senior counsel, and some of the contentions that were made should not, in our opinion, have been made. For example, counsel described the trial judge as having “cross-examined” the appellant. He said the same in his oral submissions. He criticised the trial judge for the way in which he approached the case, which he said “was to look at the defence case and criticise it and not to objectively look at the whole of the evidence”. He referred to findings made by the primary judge as “totally bizarre”. He also complained that the “stringent test” the trial judge applied to the defence case “was not applied to Crown witnesses”. In dealing with Mr Mackey’s evidence, the appellant’s counsel said that he had “questioned the learned trial judge’s role” in the trial during that witness’ evidence. In relation to Mr Robert Mackey’s evidence he said in his written submissions:
The learned trial judge makes no reference to this cross-examination which to put it mildly is “passing strange”.
During his oral submissions counsel said in answer to a question from the presiding judge:
Your Honour, I am going to develop what you haven’t seen in my written submissions. The trial judge – let me make it abundantly as clear as I can. My basic submission is this, that the trial judge had made a decision that this man was guilty. He then set about a course of finding that, justifying that, and making that clear in his decision.
The comments and contentions to which we have referred in the written submissions and the oral submission should never have been put, especially by experienced senior counsel.
One can sometimes sympathise with counsel who in the heat of the moment can tend to put their case too highly, but the comments and contentions to which we have referred were not put in such circumstances. They were put deliberately for the purpose of denigrating the trial judge.
This Court should deplore conduct of that kind which does nothing to advance the administration of justice and is of no assistance to the party whose counsel advances those comments.
Counsel must have the right to fearlessly criticise the reasoning process of the Court or a judge, but that does not give senior counsel the licence to scandalise the Court.
The appeal must be dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honours Justice Refshauge, Justice Burns and Justice Lander.
Associate:
Date: 31 January 2012
Counsel for the Appellant: Mr F J Purnell SC
Solicitor for the Appellant: Mark Fleming Criminal Lawyers
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 2 November 2011
Date of judgment: 31 January 2012
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