R v Jorgensen

[1994] QCA 340

IN THE COURT OF APPEAL [1994] QCA 340

SUPREME COURT OF QUEENSLAND

C.A. No. 160 of 1994.

Brisbane

[Dyett v. Jorgensen]

GILBERT ANTHONY DYETT

v.

LAURENCE HENRY JORGENSEN

Appellant

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McPherson J.A.
Pincus J.A.
Williams J.
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Judgment delivered 05/08/1994.
Separate reasons for Judgment of each member of the Court. All
concurring as to the orders to be made.
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O N EACH CONVICTION:

1.APPEAL ALLOWED
2.CONVICTION QUASHED
3.A JUDGMENT OF ACQUITTAL TO BE ENTERED
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CATCHWORDS:CRIMINAL LAW - PROCEDURE - after addresses but before the magistrate's decision defence wished to re- open case and adduce further evidence - evidence not known to defence at time of hearing - magistrate refused to re-open case - whether grounds of magistrate's refusal could be supported.

Counsel:Ms K McGinness for the appellant.

Mr M Byrne Q.C. for the respondent.

Solicitors:Legal Aid Office for the appellant.
Director of Prosecutions for the respondent.
Date of hearing:27 July 1994.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Fifth day of August 1994

I have read and agree with the reasons of Pincus J.A.
In addition to matters he mentions, there are some other

features of the proceedings in the magistrates court that I consider to have been unsatisfactory. One was a question by the police prosecutor that led a prosecution witness to say that the appellant cab driver was "really suss looking". An objection to this evidence was upheld; but the witness then went on to describe the appellant's departure from the scene, doing so in terms that leave no doubt that he considered him to be acting in a guilty manner.

Care should be exercised to ensure that evidence like that is not given by prosecution witnesses.
Another matter that calls for comment is some of the questions that were put to the appellant in the course of cross-examination. He was asked repeatedly whether he was not aware it was against the law to carry beer in a taxi, and it was put to him that, in doing so, he was in "flagrant disregard" of the law.

Having regard to the only substantive issue in the matter being tried, which was whether the appellant had touched his female passenger indecently, it was plain that this line of cross-examination could have been directed only to credit. There are, however, limits to the propriety of cross-examination as to credit, and I am inclined to think that here the prosecutor's questions on the subject of carrying beer in his taxi went beyond those limits.

If it is an offence to carry beer in a taxi, then questioning on the subject was prohibited by s.15(2) of the Evidence Act 1977. If, on the other hand, carrying beer in a taxi is not an offence, it may nevertheless amount to a breach of a condition of the cab-driver's licence. This seems to have been the point that the police prosecutor was seeking to make in questioning the appellant on this matter. However, if that is so, then requiring the appellant to state on oath that he had bottles of beer in his taxi would put his cab licence at some risk of forfeiture. In criminal proceedings, the common law rule that a witness cannot be compelled to answer a question which tends to expose him to a forfeiture is expressly preserved from abrogation by s.14(1)(a) of the Evidence Act. The appellant was not warned that he was not obliged to answer the question.

The amount of beer involved was small. It was a six-pack
which the appellant was taking home to drink on New Year's day.
He was not plying for hire at the time he had the carton in the
cab, and he explained that it was the only vehicle he had in
which to carry something like that. It does not seem to me that
the appellant should have been subjected to questioning on this
subject in the course of a hearing of what was for him a very
serious charge of aggravated assault. At the hearing, however,
it seems to have become the prime focus of the prosecutor's

challenge to the appellant's credibility. It occupied a

prominent and disproportionate part of the cross-examination.

In reaching his conclusions on credibility the magistrate was influenced by the appellant's demeanour while being cross-examined about this matter. He said that the appellant "appeared to tell deliberate lies about the beer, and the trip.

He says nothing happened on the trip ...". In referring to the trip, and to the evidence that "nothing happened" on it, the magistrate was speaking of the assault and the appellant's evidence to that effect. He thus linked the appellant's credibility on the matter of the beer with his credibility in relation to the assault.
For the reasons I have given, I do not think the appellant should have been questioned about the beer at all, and it was therefore wrong to base a finding as to credibility wholly or even partly on his responses to questioning on that subject.

Finally, mention must be made of the beer coaster. Some time after the incident giving rise to the charge a Mrs Moran wrote something on a beer coaster that found its way to the appellant. Even assuming that it was written with the knowledge and assent of the complainant, it is simply not possible from the evidence to say what it was that was written on it. It was said to be an "apology" from the complainant, but, without seeing the coaster or knowing precisely what was written on it, it is quite worthless as an item of evidence. We were told that the coaster was not produced because it was in the custody of the District Court in relation to another trial. If that was so, it or at least a photocopy should have been tendered. Without the coaster itself, or some reliable statement about what was written on it, the evidence about it should not have been admitted.

For these various reasons, which are additional to those given by Pincus J.A., I think the appeal should be allowed and the conviction quashed. Judgment of acquittal should be entered in respect of each charge.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 05/08/1994

This is an appeal against conviction on two counts of
aggravated assault. The applicant, a taxi driver, was alleged
to have assaulted a passenger, Ms Moran, twice, in January 1993.
There was a trial before a stipendiary magistrate. The evidence
began and concluded on Monday, 28 March 1994, after the close of
evidence called for both prosecution and defence. The parties'
representatives addressed the magistrate and his Worship then

adjourned the matter until noon on Wednesday, 30 March, for

decision.

On that occasion the appellant's solicitor told the magistrate at the outset that he wished the court to re-open the evidence in relation to the matter. He said he had received instructions from his client that morning that a witness, who had previously given evidence, was able to say that:

"... the complainant in the presence of the police office (sic) is alleged to have actually admitted that the complaints that she made never took place...".

The solicitor added that it would be necessary for two witnesses who had been called for the prosecution, and one of the witnesses who had been called for the defence, to be recalled. He said that the allegations made by the defence witness would have to be put to the prosecution witnesses and then those allegations would be sworn to by the defence witness. There was a regrettable absence of detailed information, in the matters put forward as justifying a re-opening.

The prosecutor responded by saying that the evidence was hearsay and went to credibility and argued that the case should not be re-opened. He did not suggest that there was any practical difficulty, or indeed any particular inconvenience, involved in the course which was proposed by the appellant's solicitor.

The magistrate refused the solicitor's application, giving as reasons that the "matter has been kicking around the traps" for some considerable time, that the evidence proposed to be called was hearsay and went only to credibility, and that there had been ample time for the appellant to provide his solicitor with proper instructions. His Worship went on to give his decision in the case; he found the appellant guilty as charged but did not record a conviction in respect of either offence. The appellant was released on 12 months probation.

Counsel for the appellant before us argued that the reasons that the magistrate gave for refusing to allow a re-opening of the evidence were unsound, and that is not disputed by Mr Byrne QC, who appeared for the respondent before us. As to the proposed additional evidence being hearsay, it appears that its correct characterisation is that it would, if the condition mentioned in s. 18 of the Evidence Act 1977 were complied with, be admissible as a previous inconsistent statement. Under s. 101 of the same Act the statement is admissible "as evidence of any fact stated therein of which direct oral evidence by the person would be admissible"; "the person" referring to the person alleged to have made an inconsistent statement - i.e. the complainant. It follows that if the inconsistent statement were admitted and included an assertion attributed to the complainant that "the complaints that she made never took place", to use the language of the solicitor employed in making an application for a re-opening, that would not go merely to credit, but would be evidence of the facts stated.

In fairness to the magistrate, it should be mentioned that the application to re-open was made without any notice, and his Worship was given only fairly general information as to the nature of the evidence proposed to be called and other relevant circumstances; the application was one which it was not easy to decide.

It appears however that one must conclude that the reasons given by the magistrate for refusing leave to allow the case to be re-opened are insupportable. The evidence the solicitor wished to lead would not have been hearsay and would not have been relevant only to credit; further, there was nothing specific put before the magistrate to show that, as his Worship implied, the appellant could have instructed his solicitor about it earlier than he did. The solicitor's expression "the complaints that she made never took place" is not a very clear one, but would, I think, have been taken by the magistrate to mean that the complainant's allegations were false. In this Court, counsel for the appellant, Mrs McGinness, was allowed to read an affidavit by the person who was intended to be called to prove the prior inconsistent statement, one Rhonda Moran. As Mrs McGinness pointed out, the affidavit shows that the evidence proposed to be called did not go as far as the solicitor's account of it might have induced one to assume. The affidavit says, in essence, that on 31 January 1994 the deponent heard a policeman read the complainant's statement out to the complainant and that:

"When he got to the bit about Laurie touching her the policeman asked her 'Is that true?'. Rhonda answered 'I'm not sure'.".

The reference to "Laurie" is no doubt to the appellant; the
"Rhonda" mentioned is the complainant.

It was accepted that the magistrate had a discretion whether or not to allow the case to be re-opened, but we were not referred to authority giving guidance as to the mode of its exercise. The decision of the Full Court in Carr v. Bonnett, ex parte Bonnett (1907) (Q.W.N.) 57 perhaps suggests that this Court should ordinarily uphold the magistrate with respect to such an exercise of discretion. But now such cases are dealt with in accordance with the statement of principle in House v. The King (1936) 55 C.L.R. 499. As the bases on which the discretion was exercised against the appellant cannot be supported, the question now is whether, on the rather general information before him, the magistrate should have allowed a re- opening of the evidence.

I am of opinion, on the whole, that his Worship should have done so. As has been pointed out, there was no suggestion that the course proposed would involve any substantial inconvenience or expense and the additional evidence appeared to be both brief and material. Where it does not appear that there has been any conscious decision to omit the additional evidence sought to be called, nor that there is any practical obstacle in the way of allowing a re-opening, I think a court would often incline towards allowing the defence a re-opening to call sufficiently important evidence, even after addresses, in a criminal case. Here it would have been necessary to have the matter in question put to prosecution witnesses, before Ms. Moran could be called;

but it was not argued that that would create any special difficulty. It was not made clear to the magistrate that, as appears from the affidavit I have mentioned, the witness in question Ms Moran did not disclose what she was able to say until after the hearing on 28 March concluded, so that the failure of the appellant to adduce the evidence at an earlier stage was no fault of his, nor of his solicitor. Had the magistrate been in doubt about that point, he should in my view have attempted to remove his uncertainty by inquiry of the solicitor, rather than merely assuming, as his Worship did, that the appellant had had ample opportunity to raise the matter earlier.

One cannot conclude that if the additional evidence had been let in that it would not have affected the magistrate's view of the case. What the complainant said was that she had been the object of sexual assaults by the appellant while a passenger in his taxi; the appellant denied that any such assaults occurred. The magistrate expressed himself to be unimpressed with the evidence of the appellant and a reading of that evidence tends to make one concur in the view that it was unsatisfactory, by comparison with that of the complainant. But the witness sought to be recalled, Ms Moran, was not the subject of any criticism by the magistrate; he merely characterised her evidence as of no assistance. One could not deny that the admission of the additional evidence, although it is now known from Ms Moran's affidavit that it would not have gone as far as was indicated by the solicitor, may have induced some doubt with respect to the accuracy of the complainant's evidence.

Mr Byrne argued that there should be a new trial. In considering this aspect of the case I have taken into account that the magistrate has found the prosecution evidence to be sufficiently convincing to warrant findings of guilt, but the weight of this is lessened by the fact that his Worship's reasons appear to have been affected by some errors, of varying degrees of importance. I set out one passage:

"[the defendant] says nothing happened on the trip, but then goes on to say, he could have been joking with her. This perhaps even corroborates the complainant, when she said he had made certain suggestions to her".

In truth, the appellant did not say anything about joking with the complainant, although he made general reference to joking with passengers. But that evidence could not possibly have been corroborative of any of the allegations made by the complainant.

I do not conclude that if there were a new trial the prosecution would be unlikely to repeat its previous success. But I take into account, as factors against ordering a new trial, that the magistrate did not regard the offences as sufficiently serious to warrant the recording of convictions or the imposition of any sentence other than probation, some months of which have been served.

The orders of the Court will therefore be, with respect to

each conviction:
1.Appeal allowed.
2.Conviction quashed.
3.Direct that a judgment of acquittal be entered.

JUDGMENT - WILLIAMS J

Judgment delivered 05/08/1994

I have had the advantage of reading the reasons for judgment prepared by both Pincus JA and McPherson JA. I agree with the reasons given by each of them for concluding that the convictions should be quashed and a judgment of acquittal entered in respect of each charge.