R v LBB
[2023] QCA 162
•18 July 2023
SUPREME COURT OF QUEENSLAND
CITATION:
R v LBB [2023] QCA 162
PARTIES:
R
v
LBB
(applicant)FILE NO/S:
CA No 69 of 2023
DC No 2453 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 24 March 2023 (Rackemann DCJ)
DELIVERED ON:
Date of Orders: 18 July 2023
Date of Publication of Reasons: 11 August 2023DELIVERED AT:
Brisbane
HEARING DATE:
18 July 2023
JUDGES:
Dalton and Boddice JJA and Bradley J
ORDERS:
Date of Orders: 18 July 2023
1. Appeal allowed.
2. Convictions set aside.
3. Retrial ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of strangulation in a domestic setting, two counts of assault occasioning bodily harm and one count of threatening violence which occurred as part of one episode of domestic violence – where the appellant and complainant were married – where the complainant visited her general practitioner on the same day the offending took place – where the general practitioner’s consultation notes were placed on the visualiser during his oral evidence – where the consultation notes were subsequently tendered as an exhibit – where the consultation notes were largely inadmissible which was prejudicial to the appellant – where the prosecutor used the inadmissible evidence led from the general practitioner to bolster the complainant’s credibility – whether a miscarriage of justice occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the trial judge noted after the Crown closed its case that the consultation notes included consultations which had nothing to do with the subject matter of the trial – where the trial judge proposed to tell the jury that the evidence was only put before them insofar as it contained a record of what the complainant said to the general practitioner – where the trial judge proposed to tell the jury that they could not use the consultation notes to bolster the complainant’s evidence or credibility – where both counsel agreed to the proposed approach – where the trial judge’s direction asked the jury to take an artificial approach to the general practitioner’s evidence – whether a miscarriage of justice occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the consultation notes recorded that the general practitioner questioned whether the complainant’s left wrist or forearm was fractured and ordered X-rays – where the X-rays showed there was no fracture – where the general practitioner was never asked in his oral evidence whether or not there was a fracture – where the prosecutor repeatedly told the jury that the appellant fractured the complainant’s wrist – where the trial judge acted on the basis that when the prosecutor said there was a fracture that was true – where the trial judge’s summing up assumed there was a fracture – whether a miscarriage of justice occurred
Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited
R v Hay and Lindsay [1968] Qd R 459, considered
R v KNP (2006) 67 NSWLR 227; [2006] NSWCCA 213, considered
R v McCullough [1982] Tas R 43; (1982) 6 A Crim R 274; [1982] TASRp 7, considered
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
Tran v The Queen (2000) 105 FCR 182; [2000] FCA 1888, considered
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, consideredCOUNSEL:
S J Keim SC, with M J Woodford, for the appellant
S L Dennis for the respondentSOLICITORS:
AE & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent
DALTON JA: At the hearing of this appeal the Court made orders allowing the appeal and ordering a retrial. These are my reasons for joining in making those orders. The appellant was charged with six domestic violence offences. A jury acquitted him on two counts: wilful damage and assault. They convicted on the other four counts which all occurred as part of one episode. These were: strangulation in a domestic setting; two counts of assault occasioning bodily harm, and one count of threatening violence. He appeals on the basis that (a) medical records concerning the complainant were wrongly admitted into evidence, and (b) the prosecutor made submissions to the jury about them which were false and improper. In my view the appellant has made out both these submissions, either one of which would entitle him to a retrial on the basis that there was a miscarriage of justice.
The appellant and complainant were married. The complainant’s evidence was that on 16 January 2019 the appellant punched and broke the windscreen of their car, count 1. The car was parked in a shopping centre, and they were having a verbal argument at the time. Whether the jury found the appellant guilty of this offence depended, ultimately, upon their acceptance of the complainant’s evidence. They must at least have had a reasonable doubt, as they acquitted the appellant on this count.
The second count on the indictment was a count of common assault. The Crown case was that the appellant returned home from the gym and asked the complainant to go for a walk with him. She agreed, but then the appellant chastised her for the clothing she was wearing, threw an iPad on the floor and pushed her so that she fell onto the lounge. Again, the Crown case turned upon the acceptance of the complainant’s evidence and the jury must have had a reasonable doubt, for they acquitted the appellant.
The remaining counts on the indictment all occurred as a part of one episode on 7 October 2021. The Crown case was as follows. The appellant returned home. The complainant was sitting on the lounge using her mobile phone. The appellant demanded to know whether she was chatting with somebody. When she said she was not, he snatched her mobile phone from her and tried to use a password to open the phone. This was unsuccessful, and he demanded to know why she had changed the password to her phone. He then tried to force the complainant to co-operate in using the phone’s facial recognition technology. He grabbed her face around the chin. He pushed her down onto the sofa and her face was scratched. He then seized her by the throat with one hand such that she could not breathe. She could no longer hear the crying of their baby; could not move, and felt that she was dying. When the appellant let go of her throat the complainant asked him if he was trying to kill her. He did not reply. This was the basis for count 3, strangulation in a domestic setting.
Following the above events, the complainant tried to leave the house, but the appellant grabbed her by her hair and pulled her down before she could open the door. He dragged the complainant by the hair to the kitchen and threw her onto the floor. This bruised her leg. This was the factual basis for count 4, assault occasioning bodily harm. This behaviour also bruised the complainant’s wrist, which was the basis for the second count of assault occasioning bodily harm (count 5).
The Crown case was that the appellant then closed the garage door and approached the complainant with a table fork, holding it towards her. He squatted down on the floor in front of the complainant and said, “don’t make me angry, otherwise – otherwise I’ll kill you, I’ll kill the baby, I’ll kill your parents, then I will commit suicide.” – t 1-52. This was the basis for count 6, threatening violence.
On the same day as the offending which was the subject of counts 3-6, the complainant visited her GP. The way in which the prosecutor dealt with evidence generated by that visit, and subsequent consultations with the same doctor, forms the factual basis of the appeal in this matter.
Prosecutor’s Opening
In opening the Crown case to the jury the prosecutor said:
“On that day when … Dr Wright saw the complainant … he made notes about the appointment that they had together that day, and in those notes he writes down that he observed bruising and swelling to [the complainant’s] right wrist and her forearm. He also observed bruising to the right-hand side of her head and bruising to her right leg.” – t 1-4.
It was competent for the doctor to give evidence that he saw the complainant on a certain day and competent for him to give evidence in terms of the observations recorded above. It was not strictly competent for the prosecutor to lead evidence of what the doctor’s notes said.
The prosecutor’s opening continued:
“Now, in that report that he writes about his notes from that appointment that day on the 7th of October, as well as … a follow‑up check-up on the 19th of October, he writes in his notes that on both of those appointments he informed [the complainant] to tell the police about what had happened. However, she said to him that she didn’t want to report her husband to the police.” – t 1-4 (my underlining).
That passage of the opening is problematic. Apart from the fact of the 19 October consultation, none of the substantive evidence opened was admissible, and it was against the appellant. The prosecutor refers to a report made from the doctor’s notes of consultation and as will be seen below, continued to refer to a report throughout the trial. Then the trial judge followed suit. There was no report. There were just notes of consultation.
The prosecutor continued opening:
“You’ll also see evidence from Dr Wright’s notes that later in January 2022 he goes back and he amends his initial notes to state that due to the language barrier that he had with [the complainant] … he had initially misunderstood [the complainant] when she told him about the injury to her neck. In his January note he writes down that [the complainant] initially reported to him that she stopped breathing when her husband grabbed her neck. Dr Wright also notes in his January amendment that the bruising that he observed on the day of the incident supports what [the complainant] had reported to him about her neck injury.” – t 1-4.
This passage is problematic as well. The jury is told that Dr Wright’s notes are evidence, when they are not admissible. Neither was the substance of the narrative described in this paragraph admissible. Dr Wright could give evidence of what he saw when he examined the complainant. He could not give evidence about the narrative as to how she came by her injuries. That was hearsay and it offended the rule against prior consistent statements. The doctor could give evidence that the bruising he observed on 7 October 2021 was consistent with a particular mechanism of injury.
Notwithstanding the above problems with the prosecutor’s case as opened to the jury, the transcript does not reveal defence counsel or the trial judge taking any action in response.
Dr Wright’s Evidence
Dr Wright gave evidence via video link. Defence counsel said immediately after he was affirmed, “I’ve got no objection to my learned friend leading from the doctor the notes”. If that meant that defence counsel had no objection to the prosecutor leading admissible evidence from the doctor from his notes, one may understand that it was a sensible position to take. However, what occurred was that the prosecutor led both admissible and inadmissible evidence from notes. The notes were placed on the visualiser during the doctor’s evidence and were tendered at the end of it. The notes contained much inadmissible material which was prejudicial to the appellant. There was nothing said by defence counsel about this process.
The prosecutor led evidence from the doctor, in detail, as to the complainant’s narrative of a physical altercation with the appellant that day; about the complainant’s past relationship with the appellant; about the doctor’s giving the complainant information about domestic violence services and a recommendation to contact the police.
The prosecutor then led evidence from the doctor of another consultation on 19 October 2021 when he referred the complainant to domestic violence services.
The prosecutor then led from the doctor evidence that on 20 January 2022 he had a phone consultation with the complainant, in which the complainant told him that the appellant had moved out of the marital home; that she was seeking advice from a lawyer, and that she needed paperwork for a domestic violence order application as evidence to give to her lawyer.
The prosecutor led from the doctor that the next day the complainant attended the surgery for a consultation and the doctor provided her with a copy of his notes of the consultations on 7 and 19 October 2021. He discussed the notes with her, “And when we got to the part where it had stated that she could still breathe when she was being held, she said, actually, no, I couldn’t. And that’s where I said, well, that was a misunderstanding on my part so I amended the record that said actually, she said she couldn’t breathe when I initially thought she’d said she could still breathe.” – t 2‑59. The doctor then speculated that the miscommunication “probably came about” because he had difficulty understanding the complainant, who spoke English as a second language. The prosecutor then read the doctor’s note to him, “I misheard the patient. She states she had stopped breathing whilst he was holding her neck at the time. It is also noted that the patient experienced pain at the site of the choking for three weeks after the incident. Bruising at time was noted by me would support her story.”
The prosecutor had the doctor confirm that it was likely that the bruising he noted on 7 October would “support her story” that she was strangled to the point that she could not breathe. The doctor added that he thought the length of time the complainant suffered neck pain would also support that.
Almost all the evidence led from the doctor by the prosecutor was inadmissible. While she led the evidence the prosecutor had his notes of consultation on a visualiser in front of the jury. They extended over several consultations and revealed:
(a)A detailed narrative amounting to a complaint against the appellant and a description of his physically assaulting her.
(b)Sympathetically recorded details as to the complainant’s general domestic circumstances.
(c)A hearsay history of the appellant’s having been angry and having pushed and shoved the complainant in the past.
(d)A record that the complainant did not wish to inform police, but was resolved to contact police if it happened again.
(e)The doctor’s advice to the complainant that domestic violence issues escalate over time, in a pattern, and that the violence level often increases.
(f)The doctor’s offer of domestic violence services.
(g)A description of the complainant as a “domestic violence victim”.
(h)More history from the complainant as to her general domestic circumstances, including a decision to divorce, at the consultation on 19 October 2021.
(i)A record that the complainant was having dreams of being chased and held down and was scared.
(j)A record that the complainant had not been the subject of more violence but “she makes every effort not to upset [the appellant]”.
(k)A second offer of domestic violence services.
(l)A recommendation to call triple 0 if the complainant ever feels threatened.
(m)An offer to make time to discuss the complainant’s mental health if she ever needs it.
(n)In a consultation on 20 January 2022, a note that the appellant had moved out of the marital home and that the complainant was seeking a lawyer for a domestic violence order, with associated concerns about whether or not her partner had “the remote to get into the house”.
(o)A concern on Dr Wright’s part that a presentation with a fractured thumb on 14 December 2021 might have been “another DV incident”.
(p)A second recommendation to call triple 0 if the complainant is in any immediate danger.
(q)A second description of the complainant as a domestic violence victim.
(r)At the consultation on 21 January 2022, a description of the consultation as one “in regards to initial DV presentation on 07/10/2021”.
(s)A description that the complainant was “very teary in recounting event today” [sic].
(t)A description of the reason for visit as “domestic violence counselling”.
(u)A record that “rediscussed DV counselling groups and 000 in emergency” with the added note that the complainant was “getting help through her lawyer”.
None of this information was admissible through the doctor; all of it was distinctly prejudicial to the appellant. At the end of the prosecutor’s examination-in-chief the notes were tendered. Defence counsel said nothing.
No Sensible Forensic Purpose
It was argued on behalf of the prosecution in this appeal that defence counsel failed to object to the prosecutor’s conduct because he perceived some advantage in having the doctor’s correction as to strangulation to the point where the complainant could not breathe before the jury. It may be accepted that defence counsel running this trial would consider whether there was some forensic advantage in having evidence before the jury that the complainant had originally told the doctor she could breathe during what the Crown said was a strangulation. The point could not be regarded as particularly promising given that it could only be raised in cross-examination, and that fairly clearly both the complainant and her doctor were of the view that the doctor had misunderstood her first version. If defence counsel resolved to try to introduce that evidence, thought would have to be given as to how to do so.
In any event, a decision to pursue this point could not possibly justify a decision to have the entirety of the doctor’s notes before the jury and not to object to the prosecutor opening and then leading the otherwise inadmissible evidence described above. It was significantly to the prejudice of the appellant. The Crown case on these counts depended significantly on the credit of the complainant. In fact, the cross‑examiner did not pursue the matter of the changed note with Dr Wright. The cross-examination was very brief.
The Prosecutor’s Address to the Jury
In her address to the jury the prosecutor said:
“Although she didn’t report any of the allegations, immediately, to police, you could accept as well, though, that she did go to the doctor that day, on the 7th of October. So you’ve got that contemporaneous evidence of her on the day she says that the assaults occurred, on the 7th of October. She goes and takes photographs that day; she goes to the doctor that day.
It’s not that later in January, just because of the divorce proceedings that are going on, she goes to a doctor just the – for the first time on that day going, ‘Hey, I’ve got this fracture in my wrist and I’ve got an old bruise,’ or ‘I’ve got – my head is sore and this is the reason why: it’s because my husband has been domestically violent to me, you know, this time ago.’ She went that very day.” – t 1-8.
At a later part of her address the prosecutor said:
“The Crown’s submission is that you would entirely reject the version of events that’s given by the defendant in 2022. Again, use your logic and your common sense. Look at the patient notes from the 7th of October. Look at what the complainant tells her doctor that very day about the argument that ensued, and have a look at – she’s very clear and very direct and specific about the things that she says occurs during that fight on the 7th of October, which is the day that she says it happened. And in my submission, you would accept what she says over what the defendant tells police approximately five months later, in late February 2022.
…
And I submit to you that you would accept the complainant’s version, which is occurring on that day when she reports to police, even though her statement to police is given in January 2022, look at what she’s – the statement that – what she said to the doctor on the 7th of October, and accept that over what the defendant says after he’s shown all of the evidence in the case in February 2022, and invents a story, in the Crown’s submission, to fit around that evidence.” – t 1-11.
It was improper for the prosecutor to seek to use the inadmissible narrative evidence she had led from the doctor to attempt to bolster the complainant’s credit as if the narrative given to the doctor on 7 October 2021 was a fresh complaint in a sexual assault case. The prosecutor expressly used this evidence to try to bolster the credit of the complainant and urged the jury not to have a reasonable doubt because of what the appellant had told police.
Intervention by the Trial Judge as to Inadmissible Evidence
After the Crown closed its case and the appellant indicated that he would not give or call evidence, the trial judge raised the matter of the doctor’s notes which, by that time, had become an exhibit. He said that the notes included consultations which had nothing to do with the subject matter of the trial and said, “No one was concerned about that being before the jury”. He went on to say:
“In relation to the consultations … the ones that were referred to include the one from the 19th of October, which includes her complaints of having dreams at night, being chased and held down and being scared and the like. No one drew attention to that, but it’s nevertheless in the document before the jury. It’s not a sexual case, so it’s not preliminary complaint evidence.
…
What I had thought I would tell the jury about how they are to use this is that it’s only put before them – insofar as it – insofar as it contains a recording of what the complainant said to the doctor. That’s only being put before them to show the context in which the doctor made his observations and recorded his opinions.
…
… Now, it cannot be used to bolster her evidence or as further evidence or to bolster her credibility or reliability. However, to the extent to which there are things in here which are inconsistent, it may be used to adversely affect her credibility and, in fact, the defence will rely upon a combination of factors: (a) being the recording of her complaint to the doctor on the 7th of October as being a true complaint of what happened with respect to the throat, that is not amounting to strangulation; combined with the cross-examination of the doctor about all of that.” – tt 3-6-7.
Both counsel agreed to that approach.
In relation to this, the trial judge’s summing-up included the following two passages:
●“The second thing to say is that the notes record or purport to record what the complainant said to the doctor. That has been put before you by way of the notes simply to provide the context within which the doctor recorded his observations and made his recommendations to the complainant. The extent to which what she told him is consistent with what she now complains about is not something that can be used to bolster her evidence or to add further to her evidence. In other words, the fact that she said to the doctor something which is consistent with what she now says is not further evidence against the defendant. The prosecutor invited you, in part of her address, to use it in that way. She invited you to compare the version of events in the notes to the defendant’s version of events. As a matter of law, I’m instructing you that it would be wrong to use her version of events as recorded in the notes in any way to bolster the credibility of the complainant. Because that’s not the basis upon which those things were admitted into evidence.
On the other hand, however, to the extent to which it records something which differs – that is, the extent to which it shows a prior inconsistency – it can be used and it was relied upon by the defence as showing an inconsistent previous statement which can be used to detract from her credibility if you are satisfied that she has previously been inconsistent. And I’ll get back to that when I summarise the competing cases.” – t 1-5.
●“… As I directed you during my direction in the law, insofar as the prosecution sought to rely upon the version of events in the – in the doctor’s notes insofar as it is consistent with what the complainant now says, you are not to rely upon that, as I say, as a matter of law. The version of events in the doctor’s notes, insofar as it’s consistent with what the complainant says, was not tendered – was not admitted on any basis to bolster the credibility or reliability of the complainant. But insofar as it’s inconsistent, it can be used or considered by you in determining whether she – her credibility is adversely affected by having made an inconsistent statement.” – t 1-17.
There are two difficulties with these passages. The first is that the judge asked the jury to take an entirely artificial approach to the doctor’s evidence. As a matter of fact the doctor’s notes did bolster the complainant; they were not just context. I think there is a low chance the jury understood what was being said to them,[1] let alone that they understood it in a way which allowed them to apply it as a matter of practicality. This must be judged in the context where nearly all the evidence which mattered in the trial was oral, but the jury had with them as an exhibit several pages of consultation notes, almost all of which they were being directed to ignore.
[1]Particularly when defence counsel had not cross-examined the doctor about the change in the notes as to strangulation.
Secondly, in a part of the summing-up which occurred between these two passages, the trial judge reminded the jury of submissions from the Crown. Those submissions used the doctor’s notes and evidence as if they were a fresh complaint which was corroborative of the complainant’s credit. The judge told the jury:
●“But it was submitted that you would accept that it was the defendant who was responsible for the bodily harm which she suffered, and that was the – about which evidence was given by her and by the doctor.” – t 1-16.
●“You were reminded that the evidence of the doctor in terms of his recommendations to her was that she was loathe to take the matter forward at these earlier times, and it was only when the matters escalated, and ultimately then she separates and gets some further advice, that she ultimately then complains. And that’s something which you were asked to be understanding about.” – t 1-16.
There was a third problem which the summing-up did not even attempt to address. Nothing at all was said to the jury about the great deal of material in the notes which did have something to do with the subject matter of the trial but was not a version of events by the complainant. This included the notes which showed that the doctor took the complainant’s situation very seriously and assumed the appellant was a dangerous person (references to calling triple 0, getting domestic violence assistance and mental health assistance). It included the material which expressed apprehension and fear by both the doctor and the complainant, and the reference to the application to obtaining a domestic violence order. None of that material should have been before the jury, and the trial judge’s direction does not tell them to ignore it.
I cannot see that the trial was retrievable by the point of the summing-up; certainly the direction given by the trial judge did not retrieve it. The situation remained that in a case which depended largely upon the complainant’s credit, the jury had before it evidence of prior consistent complaints to the doctor, as well as evidence that the doctor took the complaints seriously; believed the complainant was a victim of domestic violence, and believed that she was at continuing risk of domestic violence of a serious, and increasingly serious nature, such that he had tried to involve domestic violence support groups and the police. The rules of evidence as to what admissible evidence the doctor could properly give were ignored. Inadmissible evidence which was significantly prejudicial to the appellant was put before the jury. The jury were urged to misuse the evidence by the prosecutor. As a result the appellant did not have a trial conducted according to law, and the departures from law were so prejudicial to him that he must have “lost a chance which was fairly open to him of being acquitted”.[2]
[2]Driscoll v The Queen (1977) 137 CLR 517, 525, cited by McHugh J in TKWJ v The Queen (2002) 212 CLR 124, [67].
Fracture
The appellant gave a police interview in which he gave an account of the events of 7 October 2021 which was different to the complainant’s narrative. As the appellant’s written outline on appeal said, “His account included his grabbing the complainant on the wrist in order to retrieve his phone after she snatched it from him when he returned home from the Gold Coast and her falling over and injuring herself when she ran away inside the house with his phone”.
The doctor’s notes for 7 October 2021 record, “Noted wrist bruising and some pain with movement” and “Imaging request printed: Plain X-ray – Wrist, Plain X-ray – Left distal forearm, Left. (Alteration [sic] with husband this morning, injury to left wirst [sic] and diatal [sic] forerm [sic], visibly swollen, Pain with movement. R/O fracture.)” The notes for 19 October 2021 record, “Follow up, presents with her mother X-ray results NAD”.
It was conceded on appeal that the notes record that the doctor wondered whether the complainant’s left wrist or forearm might be fractured and ordered X-rays. Further, that the X-rays showed that there was no fracture. “NAD” is a well-established and well-known medical abbreviation for “no abnormality demonstrated”. That is, the notes showed that there was no fracture. The doctor was never asked in his oral evidence whether or not there was a fracture.
The prosecutor repeatedly told the jury that the appellant fractured the complainant’s wrist. More than that, the prosecutor told the jury that the “fact” of the fracture meant that the version of events given to police by the appellant should not cause them to have a reasonable doubt.
In her address to the jury the prosecutor said almost immediately that the appellant’s “violence peaked in October 2021 when, while standing a few steps away from their young baby, he fractured his wife’s wrist with his hand …”. Later the prosecutor said:
“… there’s very significant injuries that are complained of in that report[3] that aren’t in question here. He’s grabbed her wrist. He’ll [sic] see from the patient’s summary notes that there’s comments and it’s very swollen. The doctor observes a fracture in the wrist from grabbing her. There’s a referral to have X-rays on the wrist. … So there are very significant allegations of assault raised in that report[4].” – t 1-6 (my underlining).
[3]There was no report. There were only notes of consultation.
[4]There was no report. There were only notes of consultation.
Thirdly, the prosecutor said:
“And that’s because count five involves the injury to the [wrist]. Now, you’ve just heard the record of interview with the defendant and various multiple points again, and again, and again throughout that record of interview. He admits to grabbing her by the wrist. He admits in that that she said to him, ‘You’re hurting me. Let go of me.’
And he also admits at page 9 of the transcript, from that record of interview, that he says he grabbed her very hard. You’ve heard what the complainant said about this incident. You will also have with you again the notes of the doctor noting the swelling, the bruising to the wrist, that there was a fracture to the wrist and that she needed X-rays. You’ve also seen photographs that she took both on the 7th of October and on the 13th of October with those wrist injuries. So in my submission that count 5 really wouldn’t concern you to the degree that maybe some of the other counts might.” – tt 1-6-7 (my underlining).
At a fourth point in her address to the jury the prosecutor said:
“Although she didn’t report any of the allegations, immediately, to police, you could accept as well, though, that she did go to the doctor that day, on the 7th of October. So you’ve got that contemporaneous evidence of her on the day she says that the assaults occurred, on the 7th of October. She goes and takes photographs that day; she goes to the doctor that day.
It’s not that later in January, just because of the divorce proceedings that are going on, she goes to a doctor just the – for the first time on that day going, ‘Hey, I’ve got this fracture in my wrist and I’ve got an old bruise,’ or ‘I’ve got – my head is sore and this is the reason why: it’s because my husband has been domestically violent to me, you know, this time ago.’ She went that very day.” – t 1-8 (my underlining).
Lastly, as to the version of events given by the appellant to the police, the prosecutor said:
“Does simply grabbing someone’s wrist because they didn’t give you your phone back cause the amount of swelling that the doctor observed? Does it cause a fracture in the wrist that the doctor observed? And the need for multiple X-rays, which the doctor writes in his report. Does that occur from simply grabbing someone’s wrist to get your phone back?” – t 1-12 (my underlining).
After the prosecutor addressed the jury, defence counsel raised with the trial judge that the doctor’s oral evidence did not establish a fracture of the wrist. During argument about this topic the prosecutor told the judge that an “R/O fracture” was a “reverse oblique fracture”. She told the judge that there was a fracture. That was not true. The passage is as follows:
“HIS HONOUR: Reverse – what, sorry?
[PROSECUTOR]: Reverse oblique fracture.
HIS HONOUR: It does refer to a fracture. I don’t think anyone’s ever asked the doctor what that means.
[DEFENCE COUNSEL]: No. And there’s no evidence that it was fractured – from the doctor.
[PROSECUTOR]: But the doctor’s notes is the doctor’s evidence about what happened, that’s why I’m taking – the report is in evidence about – I didn’t take him through every single line of that report.
HIS HONOUR: Right.
[PROSECUTOR]: But his expert evidence, which is contained in the report, contains the notation that there is a fracture.
HIS HONOUR: [indistinct]
[PROSECUTOR]: I didn’t take him to pain with movement.
[DEFENCE COUNSEL]: I assumed that meant ‘rule out fracture’. I apologise.
HIS HONOUR: Well, I don’t know what it means.
[PROSECUTOR]: Even if you take out the ‘R/O’, if we really don’t know what type of fracture it is, the words are ‘fracture’, that he observes a fracture in the wrist. And those are contained in his notes, which is evidence in this court before the jury.
HIS HONOUR: Well, I don’t know anything about that. I don’t know anything about what the nature or extent of it is.
[PROSECUTOR]: But that could be said of every line item in that report. The report is his evidence about what he observes, and one of the things that he observes is a fracture – according to his notes.
HIS HONOUR: I suppose it does refer to a fracture.” – tt 3-17-18 (my underlining).
The trial judge acted on the basis that when the prosecutor said there was a fracture that was true. He suggested a solution which was that he tell the jury that:
“… the Crown have asked you [indistinct] fracture. The report has been put before you. There was no discussion with the doctor about a fracture. The report has been put before you as evidence of the doctor’s observations. It does refer to an R/O fracture. It wasn’t explained in evidence what R/O means. And in those circumstances it would be … dangerous for them to put any significant weight upon the fracture.” – t 3-19 (my underlining).
Defence counsel acceded to this.
The trial judge’s summing-up assumed there was a fracture. It was to the following effect:
“Now, there are a couple of things to observe about all of that. The first thing is this, that in the prosecutor’s address to you, she took – or she invited you to place some weight upon the notes where they refer to an – a fracture of the wrist. The relevant note, which you’ll see in the jury room, is capital ‘R/O fracture.’ The doctor wasn’t asked about that in either evidence-in-chief or in cross-examination, and so we simply don’t know what an R/O fracture is a reference to. And accordingly, it would be dangerous for you to proceed on the basis of giving that entry any significant weight, because you would just be guessing about the nature and extent of that fracture.” – t 1-5.
Thus the matter was left before the jury on the false basis that the doctor’s notes documented a fracture, when they did not. Not only was this false information put before the jury, but the prosecutor used it to urge the jury to find the complainant’s evidence creditworthy, and not to have a reasonable doubt based upon what the appellant had told police. Independently of the matters discussed at [1]-[34], this amounted to a miscarriage of justice which it must be accepted deprived the appellant of a chance of an acquittal on counts 3-6.
The Prosecutor’s Duty of Fairness
The prosecutor’s duty of fairness is well-known. “There are special obligations imposed on those who prosecute”.[5] In the cases of Hay and Lindsay,[6] McCullough[7] and KNP,[8] appellate courts in Queensland, Tasmania and New South Wales cite a passage from Kenny’s Outlines of Criminal Law, part of that passage is that:
“… the Crown counsel is a representative of the State … his [or her] function is to assist the jury in arriving at the truth. He [or she] must not urge any argument that does not carry weight in his [or her] own mind or try to shut out any legal evidence that would be important to the interests of the person accused. ‘It is not his [or her] duty to obtain a conviction by all means; …’ ‘… the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done’.”[9]
[5]Tran v The Queen (2000) 105 FCR 182, [131].
[6][1968] Qd R 459.
[7](1982) 6 A Crim R 274, 285.
[8](2006) 67 NSWLR 227, [32].
[9]Kenny’s Outlines of Criminal Law, 19th edition, 611 and 612.
In Whitehorn v The Queen[10] Deane J put it this way:
“Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his [or her] function of presenting the case against an accused, he [or she] will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his [or her] fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s 353; Reg v Clewer (11)). If there be exceptions to that general proposition, they do not presently occur to me.” (footnote omitted).
[10](1983) 152 CLR 657, pp 663-664.
Perhaps there was some agreement between the prosecutor and defence counsel in relation to the evidence led from the doctor and the tender of the doctor’s notes. If defence counsel had agreed to the course taken by the prosecutor, he was failing to protect his clients’ interests. The prosecutor ought not to have agreed in a course which seriously departed from the rules of evidence and created an unfair situation to the accused. Certainly defence counsel did not agree to the way the prosecutor used the doctor’s evidence in address, and did not agree to the jury being told that the complainant’s wrist was fractured and to the submissions which flowed from that. The Director of Public Prosecutions ought to have conceded this appeal.
BODDICE JA: I have had the advantage of reading the reasons for judgment of Dalton JA.
The comprehensive summary of the relevant evidence, the prosecutor’s opening and final address to the jury and the trial judge’s summing up, which I gratefully adopt, allows me to briefly state my reasons for joining in the orders made on 18 July 2023.
First, whilst there may have been aspects of Dr Wright’s notes which were perceived by defence counsel as forensically advantageous, there was no sensible forensic purpose in allowing the notes to be tendered in evidence, such that they were available to the jury in the course of their deliberations. The plainly inadmissible evidence contained within those notes was significantly prejudicial to the appellant.
In circumstances where the jury had a reasonable doubt as to the reliability of the complainant’s evidence in respect of counts 1 and 2, the availability of that inadmissible material, in the context of the forensic use made of them by the prosecutor, both in her opening and in her final address to the jury, deprived the appellant of a fair chance of acquittal on the remaining counts.
Second, the prosecutor’s reliance upon the existence of a fracture, when there was no such fracture, deprived the appellant of a fair trial. The prosecutor advanced a false premise and took forensic advantage of it in her final address, in order to bolster the credibility of the complainant.
Third, the attempt by the trial judge to overcome the unfairness, arising from reliance upon a fracture, did little to protect the appellant from an obvious miscarriage of justice. As Dalton JA observes, the trial judge, in the summing up, acted on the basis there was a fracture.
The trial judge warned the jury that it would be “dangerous for you to proceed on the basis of giving that entry any significant weight, because you would just be guessing about the nature and extent of that fracture” (emphasis added).[11] The reference to nature and extent assumed the existence of a fracture, thereby reinforcing the false premise upon which the prosecutor had put the case to the jury.
[11]ARB 39/24-26.
For a prosecutor to rely on a false premise, to urge a jury to find a complainant’s evidence credit-worthy, plainly deprives an accused person of a fair chance of acquittal. It must be accepted it did so in the present case, in respect of counts 3 to 6.
Finally, I agree with Dalton JA’s observations that the appeal ought to have been conceded by the respondent. Such a concession would be consistent with the prosecution’s duty of fairness.
BRADLEY J: I concurred with the orders made at the hearing on 18 July. I agree with the reasons given by Dalton JA.
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