R v Boyce
[1993] QCA 115
•2/04/1993
IN THE COURT OF APPEAL [1993] QCA 115
SUPREME COURT OF QUEENSLAND
C.A. No. 1 of 1993
Brisbane
[R. v. Boyce]
T H E Q U E E N
- v -
RODNEY LOUIS BOYCE
Appellant
The President
Mr Justice McPhersonMr Justice Derrington
Judgment delivered 02/04/93
Separate Reasons by the President, McPherson JA and Derrington
J. All agreeing in the order.
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS: CRIMINAL LAW - Summing up - Whether judge's views improperly influenced jury - Whether miscarriage of justice.
| Counsel: | Mr J. Parker for the appellant Mr P. Rutledge for the respondent |
| Solicitors: | Messrs. Bennet and Philp as town agents for Hoolihan and Associates for the appellant Director of Prosecutions for the respondent |
| Hearing Date(s): | 19/03/93 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 1 of 1993
Brisbane
Before The President
Mr Justice McPherson
Mr Justice Derrington
[R. v. Boyce]
T H E Q U E E N
- v -
RODNEY LOUIS BOYCE
Appellant
REASONS FOR JUDGMENT - THE COURT
| Judgment delivered 02/04/93 balance that it was unfair. There were a number of matters of complaint, namely: | The circumstances are set out in the reasons for judgment | |||
|
of Derrington J. and I need not repeat them.
It is regrettable that the trial judge conducted the trial
in a manner which permitted criticism to be made of his
impartiality.
His Honour obviously considered that the appellant
deliberately attempted on two occasions to influence the jury
by inadmissible evidence. It was for his Honour to exclude the
evidence from the jury's consideration if he was satisfied that
it ought not have been given but it was for the jury - and
should have been left entirely to it - to decide what, if any,
conclusion adverse to the appellant was to be drawn from what
occurred.
Nonetheless, it seems unlikely that his Honour's comments
during the appellant's evidence had any significant impact on
the jury and they were not the subject of objection by the
appellant's counsel at the time. Further, his Honour's comments
concluded with a remark that it was for the jury to "make up
their own mind". In the circumstances, the episodes during the
appellant's evidence are of significance only as background to
the summing-up.
(iii) unfavourable comment upon the credibility of the
appellant.
An objective perusal of the summing-up suggests that the jury would have concluded that the trial judge disbelieved the appellant and considered him guilty. On the other hand, there was no application for redirections which was not granted and the jury was plainly told, on more than one occasion, that it was for them to determine who to believe and whether or not to convict the appellant.
Although the summing-up might have been considerably better expressed and would probably have given more assistance to the jury if it had been less indicative of the judge's views, it is
unlikely that it improperly influenced the jury in its
| deliberations. appeal should be dismissed. | In my opinion, there was no miscarriage of justice and the |
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 1 of 1993
Brisbane
| Before | The President Mr Justice McPherson Mr Justice Derrington |
[R. v. Boyce]
BETWEEN
T H E Q U E E N
- and -
RODNEY LOUIS BOYCE
(Appellant)
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 2/4/1993
I have read the reasons of Fitzgerald P. and Derrington J. on this appeal. I agree with them both in thinking that the appeal should be dismissed.
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 1 of 1993
Brisbane
[R. v. Boyce]
T H E Q U E E N
v.
RODNEY LOUIS BOYCE
Appellant
The President
Mr Justice McPhersonMr Justice Derrington
Judgment delivered the 2nd day of April, 1993
Judgment of the Court
Appeal dismissed. Application for leave to appeal dismissed.
| C | ATCHWORDS: |
Criminal law. Summing up. Whether unfair. Whether trial judge
| s | hould comment on credibility of witnesses. |
| Counsel: | J. Parker for appellant. P. Rutledge for respondent. |
| Solicitors: | Bennett & Philp for appellant. Director of Prosecutions for respondent. |
Hearing date: 19th March, 1993
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 1 of 1993
Brisbane
[R. v. Boyce]
T H E Q U E E N
v.
RODNEY LOUIS BOYCE
Appellant
DERRINGTON J. - JUDGMENT
Judgment delivered the 2nd day of April, 1993
This is an appeal by the abovenamed against his conviction in the District Court of the offence of assault occasioning bodily harm whilst armed with an offensive weapon. He was fined $300 and has also applied for leave to appeal against the punishment upon the ground that it was manifestly excessive; but he abandoned this at the hearing of the appeal.
The grounds of appeal were that the verdict of the jury was unsafe and unsatisfactory in that the learned trial Judge:
"• Suggested in the presence of the Jury that the Appellant, an ex-police officer, had deliberately attempted to put inadmissible evidence before the Court, and offered the Crown the option of a mistrial on that basis.
• Misinterpreted matters of evidence to the jury in his summing up in such a way as to cast doubt on the credit of the Appellant. • Unfairly commended the complainant and his witness as witnesses of credit and deprecated the evidence of the Appellant.
•
Suggested to the jury that because no matters of bad character were put to either of the witnesses Sydes and Frier, that they were therefore witnesses of credit, worthy of belief."
The verdict of the jury depended entirely upon matters of credibility in a contest between the appellant and his wife on one side and two men named Sydes and Frier on the other, the former being the person allegedly assaulted. It was not in issue that Sydes received a blow which caused him bodily injury but there was a dispute as to whether the first blow was administered deliberately by the appellant or alternatively whether he struck it in self-defence. This in turn depended upon which of the two had commenced to strike the other first.
The appellant who was a former Federal policeman and who acknowledged his understanding of the proprieties of giving evidence in court, caused some judicial disapproval on two occasions in his evidence in chief when he volunteered prejudicial inadmissible evidence. On the first occasion he said of Sydes: "It was very unusual for him to have a shirt on over a t-shirt. And the first impression I got that he was there ready to kill: he was in his jungle greens, ready for combat. ...". His Honour said nothing at that time but commented upon it later in his summing-up, which will be dealt with shortly.
The second occasion, and that which is the subject of a ground of appeal, again concerned a gratuitous comment by the appellant to the effect that it was common knowledge that Sydes was under treatment for a mental illness. This was followed by the following exchange, addressed first to the prosecutor:
"HIS HONOUR: Do you want a mistrial?
MR FULLER: No, Your Honour.
HIS HONOUR: Do you want me to discharge the jury on the ground of deliberate attempt to influence the jury? MR FULLER: No, Your Honour. I think I can proceed with it as it is at the moment. I am sure that Your Honour can correct it.
HIS HONOUR: All right.
MR PARKER: I had no knowledge that was coming.
WITNESS: I apologise, Your Honour.HIS HONOUR: He knows what he's doing. He's - don't apologise. You keep quiet. You've been giving evidence in Court for years, you're a Federal policeman - haven't you?-- I am a - I was a former Federal policeman.
You don't know anything about giving evidence in
Court?-- Yes, Your Honour, I do.
And you know what you are doing then, didn't you?--
It wasn't deliberate on my part.
The jury can make up their own mind about that.
You're on oath. Go on."
This was said in the presence of the jury and although it was precipitated by the appellant's repeated misbehaviour, it would have been more prudent had the jury been sent out first. However although his Honour made it plain that he believed that the statement was deliberate, contrary to the witness' claim, it was made explicitly clear that the question was one for the jury. Moreover it was a side issue for although credibility was in question, none of the issues in the trial was involved.
It is preferable that judicial comment on the credibility of a witness, particularly an accused person, be restrained during the course of the evidence of that witness, but the conduct of a witness may call for discipline and if in front of the jury the witness makes self-serving statements as to his credibility, it can lead to unfairness to the prosecution to allow it to pass unremarked upon. His Honour's comment was not excessive in that context. The effect of such an incident depends upon the degree of adverse influence it may bear upon the case of an accused person. If the result is to produce any serious possibility of unfairness to the accused, then the court must intervene, but if, as here, its effect is small, it will not support an appeal.
For completeness it should be mentioned that the subject was referred to again. In his summing-up his Honour said: "It is unfortunate it (Sydes' mental capacity) was mentioned but you might think it is important in one context of the trial because the accused man said he introduced it by accident. And he said that on oath in the box and if you do not believe that at all then you do not believe him, on that point anyway."
There was nothing of this which is objectionable. It was a valid question for the jury to consider, and despite an implied indication of his Honour's own view the reference was made in neutral terms. The only basis for any complaint of this passage is that it redirected the jury's attention to his Honour's earlier expression of disbelief of the appellant's statement. This alone is not sufficient to vitiate the trial, but it may be considered with other matters in the total context in determining the appellant's major complaint of unfairness.
In support of this general complaint he referred to a suggestion in the summing-up that his evidence was inconsistent in a particular respect when that was not so. However as the result of an application by his counsel for redirections, the learned trial Judge redirected the jury to disregard that matter completely, and he gave brief but adequate reasons for that. This could not have harmed the appellant and on the contrary it may have tended to blunt other criticism of him in the summing- up. The point should be disregarded.
The complaint of unfairness was put more particularly in learned counsel's submissions to this Court as the concentration by the learned trial Judge upon matters critical of the appellant and supportive of the prosecution whilst he failed to mention matters supporting the defence or critical of the Crown case. It is correct that on the few occasions when he descended to discussing particular features of the evidence the summing-up had this tendency, but apart from the matters already mentioned, this had very limited operation.
It consisted principally of his drawing the jury's attention to his own view of the possibility of conflict in statements made by the appellant concerning relevant defence on three separate occasions. His own belief that there was relevant conflict was not expressed in strong or objectionable terms and he made it clear in that context that the question was essentially one for the jury. Further this was followed immediately by the following passage:
"There is the evidence of the accused's wife Opal Grace and it leads (sic) support to the various aspects of the accused's evidence if you accept it. The other witnesses do not seem to be of moment. I have tried to mention everyone who can throw some sort of light on it. Try and keep in mind though that this is not a contest in words, like one word or the other."
This in turn was followed by a strong and full explanation concerning the onus of proof which among other things impressed upon the jury that even if the appellant were not believed, it was still necessary to accept the evidence of the prosecution witnesses beyond reasonable doubt before a verdict of guilty could be reached.
Objection was also taken to the following passage concerning the gratuitous remarks mentioned above which were made by the appellant in his evidence:
"Sitting in Court it is hard not to observe the reactions of people in the Court including the jury and I am sure I have no need to remind you of that portion of the accused's evidence where he mentioned about when he saw Sydes in his jungle green shirt ready for combat. I saw your reaction to that, I won't mention it any further."
This comment may well have been justified in fairness to the prosecution because of the appellant's introduction of the matter. The comment does not refer to the appellant's credibility but rather to his behaviour and his approach to the matter. At worst it is a small feature in the total issue of fairness.
The complaint concerning commentary favourable to the prosecution case related to two matters. First, referring to Sydes' slow cerebration, his Honour explained that the slow way in which that witness answered questions did not necessarily connote deceit and that a person with such reduced intellectual capacity might more easily than otherwise be demonstrated to be untruthful. His Honour may have felt the need to comment on that matter as the result of something said in addresses, but in any case the statement was correct and it was a feature worth mentioning.
While on that point his Honour referred by contrast to a person "with a sharp suit and a bow tie on and he can talk fifty to the dozen, and you might not believe a word he says." The appellant has taken this to refer to himself, but the description did not conform with the appellant's appearance before the jury and it is obvious that it referred to an extreme hypothetical case by way of example. It is this misconceived attribution of this reference to himself that seems to have generated the heat in the appellant's complaint, but again there is nothing in the point.
The second point said to have been favourable to the prosecution case was made in a brief reference by his Honour to a conflict in the evidence of the opposing sides concerning survey pegs marking off an easement on which Sydes and Frier said they intended to place a pump installation in accordance with their rights. His Honour said:
"The accused man said that the survey pegs were easily observed. It was easy to observe the survey pegs and it was easy to observe the line of the easement. The other two said that they had tried to find out where it was. He would not assist them. They could only find a few pegs and they could not decide on the line of the easement, they did the best they could.
If the survey pegs are easily observable and the line of the easement is easily observed, then clearly they must have gone to dig their pump hole and put their block of cement off the easement and you can say a lot about men but, you know, they are not stupid enough to go and waste sweat and cement and concrete and reinforcing and boxing and everything if they see they are going to put a pump when it is not on the easement."
This reasoning is not wholly correct in that the misplacement of the facility may have been due to reckless or contemptuous disregard for the appellant's rights, but apart from the loss of the work and materials that necessarily would have followed, this would also have rendered them liable to legal action, which was likely under the strained relations between the parties.
The point is a very indirect and minor one, though it may have had some influence on credit. It was suitable to be brought to the jury's attention. His Honour preceded his remarks by saying to the jury: "You may think it is not important but things strike different people differently."; and he stressed that these matters were for the jury alone.
The appellant made a further complaint of favourable treatment of the prosecution in an explanation which his Honour gave to the jury concerning evidence as to character. However his remarks were unexceptional in that it was explained in a balanced way that whilst the appellant was allowed to lead evidence of his good character, the Crown could not lead evidence as to the character of its witnesses. It was further explained that the appellant was entitled to cross-examine those witnesses as to bad character and that his counsel's failure to do so might lead to the inference that there was nothing to put to them in that way.
All of this was correct. Moreover it was reasonable to refer to it lest the jury may have thought first that the failure of the prosecution to ask such questions of its witnesses implied that they were not of good character; and secondly to explain the full position, that is, that their character could have been attacked by the defence had there been anything available to it. This whole explanation was completely justified in the circumstances. It cannot be said to show bias to the prosecution any more than the proper explanation of the onus and standard of proof could be said to show bias to the defence.
It is true that, apart from those which are usually subsumed in the general directions given by the court, little was said of particular submissions of the defence as such but on the appeal learned counsel did not specify any valid features which should have been discussed. Some matters said to have been wrongly omitted, such as the effect of medical evidence led by the defence, were equivocal in the result and their absence from the summing-up did not condemn it as being insufficient. On the contrary, their inclusion may have been confusing and misleading so that it may well have been preferable to omit any reference to them. The nature of the summing up will depend on the material available and the strength of the respective cases and it should not try to introduce artificial counterweights in order to avoid the appearance of unfairness: R. v. Ali (1981) 6 A.Crim.R. 161; Cleland v. The Queen (1983) 57 A.L.J.R. 15, 19.
This completes the review of the particular features complained of as going to the total complaint of unfairness. As it has been shown, some of them are groundless. Others are of a general nature and they correspond with those general statements which favoured the appellant, such as the effect of his giving evidence, and these were all dealt with fairly according to the need. Still others were the result of his conduct in giving evidence and they were discussed in a suitable way. Of the respective cases concerning the issue of credibility, it is true that the only relevant matters of evidence analysed favoured the prosecution, but their number was very small. As against that his Honour mentioned that the appellant's account was supported by his wife's evidence, but he did not remind the jury of the mutual support of the evidence of Sydes and Frier. There was then some balancing of the review of the evidence in this way. The burden of the appellant's complaint on the point is more to the effect that his Honour spent more time explaining the few prosecution points which he identified; but this was largely due to their complexity rather than to their preponderance in number or persuasiveness.
It is important here to note that the appellant's experienced counsel did not apply for the discharge of the jury either at the time of his Honour's comment during the evidence or after the summing-up. Although he asked for a redirection, which was granted, he did not then also seek redirections or further directions concerning any of the matters now complained of, nor did he suggest unfairness or lack of balance in the summing-up. While this alone is not a reason to refuse to uphold an appeal in proper circumstances, it may help in forming a true picture of the effect of the summing-up at the relevant time: Cleland v. The Queen (1963) 57 A.L.J.R. 15, 19. In R. v. Cambell (1933) St.R.Qd. 123, approved in R. v. Lovet (1986) 1 Qd.R. 52 at 56, Blair C.J. at 135-136 said:
"Personally, I am of the opinion that when a Judge, after summing-up, asks counsel for the Crown and counsel for the defence whether they desire any other direction, and they say they do not, that concludes the matter. Of course if it were established that there was something in the summing-up which was manifestly against all sense of justice and law, this Court undoubtedly would consider it. With regard to the summing-up, the observations of the English Court of Criminal Appeal in R. v. Stoddart (1909) 2 Cr.App.R. 217 at p. 246 as to the practice should be borne in mind:-
'Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more convincingly expressed, or whether other topics which might have been dealt with on other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial, and which are only the result of criticism directed to discover some possible ground for argument.' "
E.A. Douglas J. at 137-138 said:
"I do not wish to add anything to what the Chief Justice has said, except this, that if a question of law arose, or a question which showed that some manifest error had arisen in the summing-up, then, notwithstanding that counsel had acquiesced directly or indirectly in the summing-up, it would be open to the Court of Criminal Appeal to review the whole matter. But in this case the only matters which are said to be challenged, and this is really an extra ground, are matters of fact on which the applicant alleges that his case was not put fully to the jury. Under such circumstances I think that, particularly where there has been a long trial with a lot of evidence, it is counsel's duty to point out such errors to the Judge at the time. When the Judge specifically asks the prisoner's counsel whether he desires any further direction and counsel answers in the negative, I think that is sufficient, and that the matter should not be subsequently raised for the first time in a Court of Appeal; otherwise, we should be really offering the prisoner an opportunity of raising here what he should have raised at the trial."
As for the merits of his complaints, particularly concerning adverse comments by the trial Judge on the appellant and his credibility, learned counsel for the appellant referred to R. v. George (1980) Qd.R. 346 where Lucas S.P.J., after referring to a passage in the summing-up where the trial Judge explicitly stated his belief in the honesty of certain witnesses, said at p. 348:
"In my opinion it is undesirable to have a Judge express an opinion as to the honesty of a particular witness. It is better, in my opinion, for the Judge to adhere to the time-honoured formula of saying to the jury, 'You may think that so-and-so was being an honest witness', and reminding them that in the end it was a matter for them."
However in Terence James Dee (1985) 19 A.Crim.R. 224 at 226-227, Thomas J., sitting as a member of the Court of Criminal Appeal, said:
"The learned trial Judge did not even approach the borderline of proper judicial comment on the facts in his summing-up in the present case. Guerin (1967) 1 N.S.W.R. 255 and Giffin (1971) Qd.R. 12 demonstrate that a trial Judge in summing-up at a criminal trial has a very wide discretion to comment upon the facts. He may express his own views; he may do so in
forcible language. In an appropriate case a Judge may even express his opinion to the jury as to the appropriate verdict, a matter recognised by Barwick C.J., Taylor, Windeyer and Owen JJ. (Kitto J. contra) in Tsigos (1964) N.S.W.R. 1607."
He added:
"Further, it is necessary for the Court, where improper judicial conduct is relied upon as a ground of appeal, to discern that the jury has probably been improperly overborne by the Judge's comments. The term "overborne" was used in Donnini (1973) V.R. 67 while the term "overawed" was chosen by our Court of Criminal Appeal in Bolic (1969) Qd.R. 295."
The most clear feature of all of this is the necessity to avoid unfairness, and that will depend upon the totality of the summing-up. In that respect it is not enough for the trial Judge to pronounce to the jury the usual formula that the determination of factual issues is entirely for them; and even where, as here, the reference is made on a substantial number of occasions, that will not necessarily defeat a complaint of unfairness.
It is also desirable that he should inform the jury sufficiently of the submissions of both sides to provide a balanced review reflecting the respective strengths of the cases; but this does not require him to review all the evidence or to remind the jury of the arguments of either side which have little or no probative value, and much will depend on the length and complexity of the case and the recency of counsels' addresses. See R. v. Hawkins (1949) Q.W.N. 34; R. v. Ginies (1972) V.R. 394; R. v. Lovett (1972) V.R. 413; R. v. Steane
(1947) K.B. 997. However, examples such as these are of little use for much will depend upon the circumstances of the particular case.
In the present case, complaints of emphasis of the prosecution case proved to be without substance in many respects and the rest was justifiable comment. In respect of the strongest point for the appellant, the relative absence of explanation of the defence submissions his Honour still clearly pointed out to the jury that his evidence was supported by that of his wife; and while he did not particularly elaborate upon that, he certainly said nothing by way of disparagement.
In these circumstances, while the summing-up was not entirely satisfactory, it was certainly not unfair in the sense of attracting the intervention of this Court when the insupportable criticisms are disregarded.
Accordingly the appeal should be dismissed. As the applicant did not proceed with his application for leave to appeal against sentence, that too should be dismissed.
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