R v Ellacott

[1996] QCA 233

IN THE COURT OF APPEAL	[1996] QCA 233
SUPREME COURT OF QUEENSLAND

C.A. No. 83 of 1996

Brisbane

[R. v. Ellacott]

THE QUEEN

v.

MALCOLM JOHN ELLACOTT

Appellant

Fitzgerald P.
Davies J.A.

Williams J.

Judgment delivered 16/07/1996

Joint reasons for judgment of Davies J.A. and Williams J.; separate concurring reasons of

Fitzgerald P.

APPEAL ALLOWED. VERDICT ON EACH COUNT SET ASIDE. RETRIAL

ORDERED ON EACH OF THOSE COUNTS.

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - stalking - wilful damage to property - unlawful and indecent assault - evidence of certain witnesses excluded at trial - that evidence relevant to central issue of the nature of the relationship between complainant and appellant and therefore wrongfully excluded.
Counsel:	Appellant appeared on own behalf Ms. L. Clare with her Ms. L. McConnell for the respondent
Solicitors:	Appellant appeared on own behalf Queensland Director of Public Prosecutions for the respondent
Hearing Date:	21 May 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 16/07/1996

The circumstances giving rise to this appeal are set out in the joint reasons for judgment of Davies J.A. and Williams J.

The evidence of persons who observed the appellant and the complainant in each other’s company and their apparent relationship during the material period could not properly be excluded from the trial of the stalking count, and such evidence did not become “collateral” merely because it might have contradicted relevant portions of the complainant’s evidence and hence bore upon the credibility and reliability of her evidence overall.

While the position is less clear in respect of the other counts, had the excluded evidence been admitted the jury would have considered the evidence against the appellant in respect of those counts in a substantially different overall context, including such impact as the excluded evidence had upon the credibility and reliability of the complainant’s evidence. While it might not have been permissible to call the witnesses whose evidence was excluded for that purpose, it does not follow that, once their evidence was given, the jury would have been required to exclude it from consideration when assessing the worth of her testimony.

In the circumstances, I agree that the appeal should be allowed and the convictions set aside, and a new trial ordered.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND WILLIAMS J.

Judgment delivered the 16th day of July 1996

After a trial in the District Court at Ipswich the appellant was found guilty of one count of stalking, three counts of wilfully damaging property, and one count of unlawful and indecent assault. The jury acquitted him of a charge of entering a dwelling house with intent. All of the incidents giving rise to the charges occurred between December 1994 and September 1995.

The appellant, who appeared in person, has appealed against his convictions on the ground that the learned trial Judge erred in law in ruling inadmissible certain evidence which his counsel proposed to lead at the trial. In the course of oral argument other issues emerged relating to the conduct of the trial by the appellant's barrister.

The wilful damage charges related to incidents which occurred on 16 June 1995, 17 June 1995, and 19 June 1995; the assault also occurred on the last of those dates. The stalking was alleged to have occurred between 25 December 1994 and 11 September 1995; the concerning acts alleged were the use of violence on 19 June 1995 and threats of violence throughout the whole of the period specified.

The complainant in all instances was Justine Bilston; her evidence was that she was the appellant's "girlfriend" from about Christmas 1993 until just after Christmas 1994 when they "broke up". She said that she terminated their relationship because of his erratic abusive and threatening behaviour and, perhaps implicitly, his drug abuse. She said that thereafter she avoided his company, she did not go voluntarily in his company anywhere and she wanted him to leave her alone.

There was evidence, principally from the complainant, which, if accepted by the jury beyond reasonable doubt, would have established each of the offences with which the appellant was charged.

The complainant gave evidence that she was in his company at social gatherings on a number of occasions since that time but she explained these by reasons other than a wish to continue her relationship with him and denied showing affection to him on any of these occasions. She said that she went to Brothers Leagues Club with him for his birthday in about February 1995 but that she did this because she wanted to talk to his parents about his problems. She said that she went with him to an engagement party of a friend Linda Atley in February or March 1995 because he told her that if she did not take him he would turn up anyway; it was because of the possible embarrassment of this that she agreed to go with him. She said that she went with him to a Slayer concert at Festival Hall in March although she said that this was because he happened to be in a group of friends which also included her. She said that she went with him to a barbeque at the house of friends of his parents but again that this was so that she could talk to his parents about his problems.

The complainant also admitted under cross-examination that she went with the appellant to the house of a couple who were his friends for dinner on one occasion; she said that she did this so that she could talk to them to see if they could do something for him. And she admitted that she went to another engagement party in February 1995 with the appellant, and agreed that she slept overnight at the house at which the party was held but denied that she did so on a mattress with him.

It was put to the complainant on behalf of the appellant that on some of the above occasions she had demonstrated affection towards the appellant by holding his hand or putting her arm around him, which she denied. At least one other occasion was put to her in which it was said that she in his company apparently voluntarily and happily. It was put to the complainant that she went on a swimming outing to Kholo Crossing with the appellant and three others and later to the appellant's property near Ipswich; that the whole party returned to her house for a shower; that she offered them all lunch which they declined; and that later that day after the others had left she and the appellant visited them at the appellant's property where they were camping. She denied all of this except that the appellant and later the others arrived at her house and shortly afterwards left; she denied going with them or later offering them lunch or returning to visit them. At the trial the appellant's counsel sought to adduce evidence from Ms. Meyer, Mr. Miekhausen, Mr. Voigt, Ms. Hall and Mr. Loather. These witnesses, it was said on the appellant's behalf at the trial, would have contradicted the complainant's evidence on some aspects of these occasions which reflected on the relationship between them. In respect of the last occasion referred to above the appellant sought to call Ms. Hall and Mr. Loather to say that events occurred as put to the complainant and that there appeared to be no strain in what appeared to be a normal de facto relationship between the complainant and the appellant.

Mr. Loather would also have given evidence about seeing the appellant and the complainant together at the Slayer concert, apparently happy in each other's company, with arms around each other.

Ms. Meyer, Mr. Voigt and Mr. Miekhausen would have given evidence about the dinner referred to above; that the appellant and the complainant arrived and left together, that they sat beside one another at dinner and later in the lounge and that they appeared happy and relaxed in one another's company. Ms. Meyer also recalled the complainant saying that she and the appellant were going to a forthcoming Kiss concert. She would also have given evidence that she and Mr. Miekhausen were at the barbeque referred to above and that on that occasion the appellant and the complainant arrived and left together and spent most of the night in one another's company apparently happily.

The learned trial Judge refused to admit that evidence on the ground that it was collateral. Whether his Honour was correct in that ruling was the most important and difficult question in this appeal.

All of this evidence was relevant to the true nature of the relationship between the appellant and the complainant between December 1994 and June 1995 during which, it was alleged, concerning acts had occurred. It is true that none of this evidence would have proved that the appellant and the complainant continued to live in a de facto relationship if they ever did. A jury properly instructed may have considered that such evidence tended to prove that they appeared to continue over that period in a mutually affectionate relationship and consequently one which was arguably inconsistent with the existence of the concerning acts alleged over this period. For that reason, in our view, this evidence was wrongly excluded.

In many cases the question whether evidence should be excluded on the basis that it is collateral may involve questions of degree on which judicial minds may differ. But we are inclined to think that the relevance of the excluded evidence to the central question of the nature of the relationship between the parties was sufficiently strong to justify this Court in overruling his Honour's decision.

Had this evidence been admitted the jury would have been entitled to take it into account also in assessing the complainant's credit in respect of the other counts. And whilst we consider it unlikely that, if this evidence had been admitted, the jury would have reached a different verdict on those counts we cannot be satisfied that, if it had been admitted, the jury would inevitably have convicted the appellant on those counts.

We would therefore allow the appeal, set aside the verdict on each count and order a retrial on each of those counts. In those circumstances it is unnecessary to deal with the other matters raised by the appellant in his oral argument which concerned the conduct of his case at trial by his counsel.