Ng v C Haskett LCM and Director of Public Prosecutions

[2002] NSWSC 258

CITATION:	Ng v C Haskett LCM and DPP [2002] NSWSC 258
FILE NUMBER(S):	SC 13749 of 2001
HEARING DATE(S):	11/03/2002
JUDGMENT DATE:	4 April 2002
PARTIES :	Hoi Ting NG C Haskett LCM Director of Public Prosecutions
JUDGMENT OF:	Levine J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Haskett LCM

COUNSEL :	Applicant - A Dailley SC First respondent - Second respondent - P Barrett
SOLICITORS:	Applicant - Robertson Saxton Primrose Dunn First respondent - Crown Solicitor Second respondent - Solicitor for the DPP
CATCHWORDS:	Appeal from Magistrate's ruling - leave to Prosecution to call evidence in rebuttal - Justices Act 1902 s104(4)
LEGISLATION CITED:	Justices Act 1902 s104(4) Supreme Court Rules Pt51B r(ii)(a) Crimes Act 1900 s35 Evidence Act 1995 s177
CASES CITED:	Shaw v R (1952) 85 CLR 365 Killick v The Queen (1981) 147 CLR 565 The Queen v Chin (1985) 157 CLR 671 Lawrence v The Queen (1981) 38 ALR 1 House v The King (1936) 55 CLR 499 Bush v the Queen (1993) 115 654 Browne v Dunn (1894) 6 HL 66 Bush v The Queen (1993) 115 ALR 654 R v Chin (1985) CLR 671 The Queen v Peter Schneidas (No 2) (1981) 4 A Crim R 101
DECISION:	See paragraph 37

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DLJ: 1

[2002] NSWSC

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Justice David Levine

5 APRIL 2002

13749 of 2001

Hoi Tin NG
( Applicant)

v

Local Court Magistrate C. Haskett

(First Defendant)

Director of Public Prosectutions

(Second defendant)

JUDGMENT

1 By an Amended Summons filed on 7th February 2002 the applicant, Hoi Tin Ng, seeks leave pursuant to section 104(4) of the Justices Act 1902 to appeal an interlocutory order of the first defendant allowing the Director of Public Prosecutions to reopen the prosecution case against the applicant after the defence case had begun and expert evidence had been called and was concluded.

2 An extension of time is also sought pursuant to SCR Pt 51B r6 (ii)(a).

3 In support of the principal application the affidavit of John Leslie Sutton sworn 6 December 2001 was read; a further affidavit sworn 7 February 2002 annexing formal material was also relied upon.

4 By notice of motion the extension of time under the above rule is sought and the affidavit of John Leslie Sutton sworn on 7 February 2002 was relied upon. As to this application for an extension of time I do not see any reason to refuse it and I will order that time be extended for the institution of the substantive proceedings to 7 February 2002.

5 The nature of the case (based to some extent upon the Statement of Grounds filed pursuant to SCR Pt 51B r 5(7)) is as follows: the applicant was charged before the Downing Centre Local Court at Sydney with one count under s 35 of the Crimes Act 1900, namely, that he maliciously inflicted grievous bodily harm on Ms Kim, his wife, during a domestic argument. Ms Kim alleged that on 31 December 1999 the applicant struck her to the face and head a number of times before causing her nose to bleed. After she cleaned herself up she alleged she was kicked by the applicant in the side under her arm causing her to have difficulty breathing. An ambulance was called and she was taken to the Royal North Hospital where she was diagnosed as having three fractured ribs and pneumothorax requiring the insertion of a chest drain.

6 The charge against the applicant required proof beyond reasonable doubt that the applicant delivered a kick to Ms Kim, that the kick was unjustified and not in self defence, and that the kick caused the grievous bodily harm, that is the three fractures to the ribs.

7 It is contended for the applicant that it was essential to the Crown case that evidence of the causal connection between the kick and injury be called. The prosecution elected to call only the evidence of Ms Kim in that respect.

8 The only medical evidence tendered by the prosecution was an Expert Certificate under s 177 of the Evidence Act 1995 by C. W. Deal, Senior Cardiothoracic Surgeon at the hospital. It relevantly stated in paragraph 5 that specialist’s opinion that the nature of the injury was one in which considerable force was necessary to fracture the three ribs. The other evidence tendered on behalf of the prosecution was another certificate, from Dr Eva Pilowsky, prepared in her capacity as medico-legal affairs co-ordinator which merely sets out the injuries the records disclose as having been sustained by the victim.

9 On the first day of the hearing (19 October 2000) Senior Counsel for the applicant informed the Court that a Dr Godfrey Oettle was present to sit in court and make notes. There was no objection from the DPP nor from the learned Magistrate.

10 Ms Kim commenced her evidence on this day and was cross-examined. In cross-examination (page 28.15) it was clearly put to Ms Kim that the evidence about being kicked was false; the witness denied that that was so. The witness agreed (page 31.5) that she had become aware before she gave her evidence that there would be some questions as to how the injury was caused. She was cross-examined as to the facts of the alleged kicking. It was put to her (page 31.6):

“Q. ...and that a doctor might query how it was caused?”

She was further cross-examined about how she contended that the injury was caused by the alleged kick.

11 On the same day during cross examination she was asked:

“Q. Did you, in fact, strike the corner of the table with your back? Did that cause the rib injuries, you striking the corner of the table?

A. That table is not, I don’t think that table is strong enough to break a human’s bone”.

12 Photographs of the coffee table were tendered before the magistrate.

13 The following further evidence was given:

“Q. Did you, in fact, fall over and strike the back – your back on the table.
A. No.

Q. Do you know where your ribs were broken?
A. Yes, on my right side.

Q. Would you stand up and indicate to her worship where you believe the ribs were broken?
A. The ribs are broken right here. Towards back, should I say. Medically, in terms of medical, I thought the pain was right here because that’s where I had the hit but medically, when I went to see the doctor, the doctor was saying that my ribs were actually broken towards my back round here. There’s three of them, here.

BENCH: How would you describe that? So it’s the sort of back portion of the side, that portion of the right side rather than the front portion of the right side.

DAILLY: Q. May I suggest to you, in fact, your ribs wee cracked some 60 centimetres--

BENCH: Ribs were cracked, what?

DAILLY: Q. Your ribs were cracked 60 millimetres from your spine. O you know what 60 millimetres is? So, what I am indicating at the moment?

BENCH: Is that 2 or 3 inches?

DAILLY: I’ll tell you. Yes, 60 –50 millimetres is 2 inches. Sixty millimetres is 2 inches and 1 centimetre.

Q. About that much from your spine. Most are on the back of your body. Are you aware of that?
A. I am not aware of exact what size my ribs or – I don’t know.

Q. Well, if you will accept from me, at the moment a point over that distance, 60 millimetres from your spine. Do you know where your spine is?
A. More at the back, yes.

Q. That certainly is a long distance away from the right side of your chest, isn’t it?
A. Maybe, I don’t know. I’m not a doctor, I don’t anything”. (T 36-37)

14 The next matter of some significance, in my view, is recorded at page 40 where the transcript of the proceedings in the Local Court indicate “Discussion as to length of case and witnesses”, that is before the close of the Crown case.

15 That discussion was sound recorded and a transcript was produced in the course of which the following exchange is recorded:

“ HER WORSHIP: Is this the last witness? No, there will be medical evidence, will there?

THE PROSECUTOR: There is a social worker and I’m minded to call Dr Deal, who was on my standby.

HER WORSHIP: There will be cross-examination if there is some dispute and then there would be your expert?

MR DAILLY: Yes, there would be my expert.

HER WORSHIP: Two days?

MR DAILLY Yes, two days”. (T 54)

16 Finally on the first day of the hearing there was discussion as to the availability of transcript. The learned Magistrate indicated that as far as she was concerned she did no think that she was going to need one.

17 The case resumed for two days on 24 and 25 October 2001.On the first day of the resumed hearing Miss Kim was further cross-examined:

“Q. Well, let me suggest this that as he came in from the balcony you came towards him and once again you had a knife in your hand. What do you say?
A. That did not happen on 31 December.
Q. Let me suggest he moved backwards away from you and fell over some kids’ toys in the lounge room. What do you say?
A: That did not happen on 31 December
Q. And let me suggest you kept comming at him and as he was on the floor with two hands on the floor he reached up with his leg and connected somewhere here, as I indicate somewhere about the chest of the right cheat and pushed you away from him. You were then standing at that time. . What do you say?
A. That’s not true that’s not what happened.
Q. And let me suggest you half spun and fel over and fell onto the coffee table?
A. That’s not what happened on 31 December.
Q. And you injured yourself on the coffee table did you not?
A. That’s not true.
Q. And he tried to assist you, did he not?
A. Can you be more specific?
Q. Asking you ‘What’s wring with you? Did he ask you that ‘What’s wrong?’
A: Are you talking about 31 December?
Q. Yes, I’m talking about when I suggest you fell backwards after he pushed you with his foot and you fel on the coffee table. You say that’s not correct, that he kicked you in the way you have described at the last hearing. Is that right?
A. Yes, that’s correct”. (T27)

18 Page 37 of the transcript of the first of the resumed hearing dates discloses the tender of the certificates to which I have referred above and the closure of the case for the Prosecution.

19 By consent Dr Oettle was the first witness called for the defence in the proceedings in the lower Court. He was examined and cross-examined as to the injuries sustained and the cause thereof. The following, in re-examination, represents the nub of the expert’s opinion.

“Q. If we can concentrate on what brings us here? As understand it the rib fractures to Ms Kim were three fractures in line, in a vertical line, parallel to the spinal column?
A. Yes.

Q. Each was about 60 millimetres from the spinal column?
A. Yes.

Q. Could you just focus upon that injury? In your opinion, is it possible to cause that type of injury in that location, by any type of kick at all to the side of the chest between the armpit and the waist?
A. No”. (T53)

20 On the following day, Thursday 25 October, there arose the matter that brings this case to this Court.

21 On that day the DPP made an application for an adjournment of the hearing with a view to making enquiries of a radiologist (not able to be identified a that time) to canvass from that person the accuracy of evidence of Dr Oettle as to the location of the rib fractures. The fundamental intention of the prosecution was that if evidence in conflict with that of Dr Oettle was found to be available the DPP should be able to reopen the prosecution case. It was put that the prosecution could not have foreseen that an issue would arise as to causation in terms of the location of the injury, its nature and what was asserted to have caused it i.e. falling on the coffee table as opposed to the kick.

22 Legal argument proceeded before her Worship and her Worship granted the DPP’s application on the basis that the circumstances were exceptional.

23 After hearing evidence her worship concluded as follows:

“In looking at the discretion the Court has in dealing with very exceptional circumstances to my mind this particular case is distinguishable from the facts in the High Court cases and the cases referred, in particular Chin and the others.
To my mind this is exceptional. Her we are dealing with expert medical evidence from Dr Oettle and it is evidence of a particularly exceptional kind in that it is forensic pathology and that as I’ve said the location of the injury the prosecution say it is not foreseeable that would be in dispute and that would then become a crucial aspect in terms of the evidence and the case for the defence.
Accordingly I am going to allow the prosecution to call further evidence. As to my mind matters have been raised for the first time in the defence case and the prosecution have been taken by surprise”.

24 I accept that as a 24 October 2001 no transcript was available to the Bench of what had occurred on the first day, namely 19 October 2000.

25 It is argued for the applicant that the learned Magistrate erred in granting the adjournment as I understand it with a view to the prosecution seeking evidence to call “in rebuttal” (as the respondent to the current summons concedes it to be). It was in contravention of the principle which may be generally stated that the Crown cannot call evidence in reply which it should have called in its case in chief. The Crown should present its case completely and not split its case by calling evidence in reply to the defence case where it should have anticipated that the defence case would raise such an issue. It is only in very special and exceptional circumstances that the Crown will be allowed to call evidence in reply, and not where the issue should have been foreseen. It is not merely a technical rule but an important rule of fairness in ensuring a fair trial: Shaw v R (1952) 85 CLR 365. The application of this principle was exemplified in the course of submissions by reference to Shaw, Killick v The Queen (1981) 147 CLR 565, The Queen v Chin (1985) 157 CLR 671, Lawrence v The Queen (1981) 38 ALR 1.

26 It is essential to the Crown case that evidence of the causal connection between the kick and the injury be tendered, the applicant submits. That would require evidence of the specific type of injury, the location of the injury and the injury being consistent with and caused by the kick. The DPP elected only to call evidence from Ms Kim and tender the two medical certificates.

27 It is argued for the applicant that it was patent from the first day that the issue of causation was “live”; it became further exposed during course of the cross-examination of the complainant and indeed before the closure of the Crown case, in relation to the discussion as to the further focus of the hearing the DPP intimated the possibility of it calling evidence from medical experts. The defendant/applicant’s case was put in turns to the complainant and at the end of the first day of the hearing before the learned Magistrate, it is submitted, that it was abundantly clear that the issue of the location of the injury and causation thereof was an issue.

28 For the defendants it is submitted that the learned Magistrate was correct in finding in the circumstances of the hearing before her that the “circumstances” leading to her order were exceptional. It is also submitted that as the finding was one of fact in the proper exercise of a discretion as opposed to a finding of law, this Court should not interfere even if the Court takes a different view of those facts: House v The King (1936) 55 CLR 499 at 505.

29 I am not persuaded by this submission. It is quite clear to me that the learned Magistrate has mistaken the facts upon which she purported to exercise her discretion and thus the discretion miscarried. That mistake of fact is constituted by what the transcript discloses as to the clear indication, thus obviating the want of foreseeability, of the attack being made by the applicant in defence of the charge against him or to put it more acutely, the issue being raised which the prosecution had to deal with to the point of proof beyond reasonable doubt.

30 It is also submitted for the defendants that the prosecution had called all of the evidence necessary to prove the elements of the charge, namely that there had been an unlawful assault, a kick by the applicant, that had caused grievous bodily harm namely three fractures to ribs and pneumothorax. The defendants go on to assert that it is inherent in the Magistrate’s finding that there was a “prima facie” case. It points to no submission to the contrary having been put by Counsel for the applicant.

31 It is contended that the evidence led by the applicant from Dr Oettle for the first time put in issue the causal connection between the kick and the injuries. With this proposition, as I have indicated, I disagree.

32 As there was no submission by the applicant made at the close of the prosecution case that there was no causal connection between the kick and the injury, the prosecution could not have foreseen the raising of that issue by the applicant in his case. Support for this proposition was sought to be obtained from the decision of the Full Federal Court in Bush v The Queen (1993) 115 ALR 654 at 667.40 per Drummond J and the authority cited by his Honour, R v Chin (1985) 157 CLR 671 at 676 and 684-5. The mere failure on the part of the defence to make a “no case” application, in my view, does not warrant that non-event being elevated to an “exceptional” circumstance in the whole ambit of the matters for consideration on an application of the kind her Worship was dealing with. There is no obligation upon the defendant to make any such application, a defendant in a criminal case is free to take whatever course that defendant chooses on advice or otherwise.

33 Further, some comfort was sought to be obtained from the fact that no notice by way of the service of any medical report was received by the DPP. Again, there was no obligation upon the defence in the proceedings in the Local Court to take any such step. I have found otherwise that there was an abundance of notice. What is specifically complained about by the DPP is that whilst it had been put to the complainant that her injuries had not been caused by a kick but by a fall to the table (which she denied), it had not been expressly put to any medical witnesses that the kick described by the complainant was not “capable” of causing the injuries she had suffered. This, it was contended was a breach of the rule in Browne v Dunn (1894) 6 R 76 per Lord Halsbury at 76-77 (cf. The Queen v Peter Schneidas (No. 2) (1981) 4 A Crim R 101 at 110).

34 The rule in Browne v Dunn was not offended by the conduct of the defence vis-à-vis the prosecution case in circumstances where not only the precise issue, namely causation, had been clearly rendered “live” during the course of the progress of the prosecution case, but the specific issue as to causation had been put to the complainant. This view could be reached the more easily in the light of the other factors namely the anticipation, as remarked in the “discussion”, that the Crown would be calling medical evidence before the closure of its case, and from the perception of the defence, the “neutrality” of the tendered certificates.

35 I am thus persuaded that the learned Magistrate was in error in concluding that the evidence of Dr Oettle for the first time raised matters that were unforeseeable to the prosecution and that there thus existed exceptional circumstances for her to exercise her discretion in favour of the prosecution being permitted to reopen its case, the error being founded in a misappreciation of fact as to what thitherto had occurred in the course of the proceedings before her.

36 These circumstances were not exceptional, the matter in issue having been raised and the point in issue being foreseeable on a proper view of the structure, progress and the evidence in the proceedings in the Local Court up to the time that the order under review was made.

37 The formal orders are:

1. I extend the time for the filing of the summons to 7 February 2002

2. I grant leave pursuant to s104(4) of the Justices Act 1902 to appeal the interlocutory order of the first defendant allowing the Director of Public Prosecutions to reopen the prosecution case after the defence case had begun and expert evidence had been called and was concluded, such order being made on 25 October 2001.

3. I declare that the learned Magistrate erred in law in exercising her discretion to adjourn the hearing to allow the Director of Public Prosecutions to reopen the case as referred to in order 2.

4. I order that the first defendant continue the hearing of the proceedings before her to its conclusion as if the order under review had not been made nor sought.

5. The second defendant is to pay the applicant’s costs.

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Last Modified: 04/08/2002