R v Savage

Case [2017] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Savage [2017] QCA 139

PARTIES:

R
v
SAVAGE, David Richard Towa
(appellant)

FILE NO/S:

CA No 262 of 2016
SC No 1 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 30 August 2016

DELIVERED ON:

21 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2017

JUDGES:

Gotterson and McMurdo JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CORROBORATION – DIRECTIONS TO JURY – OTHER MATTERS – where the appellant admitted to stabbing the deceased during a violent altercation but the defence case was that the stabbing was not a willed act, was done in self-defence, that the appellant lacked the intention to cause the death or grievous bodily harm or that the stabbing was provoked by the deceased – where Mr Baira, an indigenous witness, gave evidence that there was a period of separation between the two men during the altercation which, it was argued, was consistent with the appellant acting in self-defence – where Mr Baira’s evidence was in some respects internally inconsistent – where the trial judge told the jury at the start of the trial that Aboriginal and Torres Strait Islander witnesses may be intimidated by giving evidence and may take longer to respond to questions but that the phenomenon was “not a sign of dishonesty” – where the trial judge, when referring to Mr Baira’s evidence, said that the jury might think he gave inconsistent answers and appeared to have difficulty expressing himself in sequential detail, which was “not uncommon with Aboriginal or Torres Strait Islander witnesses” and that it “may not mean he was being dishonest” – where s 632(3) of the Criminal Code (Qld) provides that a judge “must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses” – whether s 632(3) applies only in a case where the jury is asked to convict on the uncorroborated testimony of one witness – whether s 632(3) prohibits only a warning or suggestion about the content of the law as opposed to a comment upon the reliability of certain witnesses – whether the judge’s comments suggested to the jury that the law regards indigenous persons as unreliable witnesses – whether any unfairness could have resulted from the trial judge’s comments

Criminal Code (Qld), s 632

Bowles v Western Australia [2011] WASCA 191, cited
Morgan v Western Australia [2011] WASCA 185, cited
R v Condren (1987) 28 A Crim R 261, cited
R v Knight & Ors [2010] QCA 372, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300, cited

COUNSEL:

P J Davis QC, with B K Buckley, for the…

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AGLC
R v Savage [2017] QCA 139
Case
[2017] QCA 139
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v Savage was convicted of the murder of a deceased man through stabbing. The appeal centred on the trial judge's comments regarding the evidence of an indigenous witness, Mr Baira, who gave evidence that there was a period of separation between the two men during the altercation which was argued to be consistent with the appellant acting in self-defence. The appellant contended that the trial judge's comments about indigenous witnesses contravened s 632(3) of the Criminal Code (Qld), which prohibits judges from suggesting that the law regards any class of persons as unreliable witnesses. The appellant further argued that the judge's statements, if not in contravention of s 632(3), nevertheless involved an error of law or an irregularity which could have affected the outcome.

The court considered whether s 632(3) applies only in cases where the jury is asked to convict on the uncorroborated testimony of one witness, and whether it prohibits only a warning or suggestion about the content of the law as opposed to a comment upon the reliability of certain witnesses. The court held that s 632(3) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interest of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses. The court concluded that the comments made by the trial judge did not suggest to the jury that the law regards indigenous persons as unreliable witnesses and that there was no unfairness which could have resulted from the comments.

For these reasons, the court rejected the appellant's arguments and dismissed the appeal. The court held that there was no error or irregularity in the comments of which complaint is made and that the sole ground of appeal must be rejected. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant’s argument is focussed upon, if not limited to, a contention that what was said by the judge about the evidence of indigenous witnesses contravened s 632(3) of the Criminal Code (Qld) in that the judge suggested that the law regarded indigenous persons as unreliable witnesses. If that was the effect of what the judge said, the summing up involved a legal error which would require the appeal to be allowed, and a re-trial granted, except if this Court was persuaded to apply the proviso.[1] There is a further argument that the judge’s statements about indigenous witnesses, if not in contravention of s 632(3), nevertheless involved an error of law or an irregularity which could have affected the outcome. For the reasons that follow, those arguments should be rejected and the appeal should be dismissed.[1]Under s 668E(1A) of the Criminal Code.The evidence at the trial There was no question that it was the appellant who killed the deceased man, by stabbing him with the appellant’s knife. The defence case was that the stabbing was not a willed act,[2] he acted in self-defence,[3] the appellant did not intend to cause the death or grievous bodily harm[4] or the stabbing was provoked.[5][2]s 23 of the Code.[3]s 272 of the Code.[4]s 302 of the Code.[5]s 304 of the Code. The man who was killed was a homeless person, at that time sleeping near the home unit where the appellant lived. The appellant gave evidence at the trial in which he said that he had suspected that it was the deceased man who had broken into his unit and left it in a mess. Consequently, he said, he decided to confront the man, so as to scare him and deter him from coming to his unit again, but not to hurt him. The evidence included the appellant’s statement to police where this was said:“[I] went up home without him seeing me, put that balaclava on, and I grabbed a knife. I didn’t want to – I wasn’t setting out to kill the guy. Really, truly, I just wanted to scare him and that. Anyway, when he had his back to me, I ran up to him and I grabbed him by the neck and had the knife to his neck, but he struggled out of that. I didn’t mean to stab him – truly. It’s the truth.” The appellant and the deceased man had known each other for some time. Occasionally the deceased man had been allowed to stay the night at the appellant’s unit. They were each recipients of a disability pension and had met when collecting their doses of prescribed medication. In the course of the dealings between the two men, the appellant said in evidence, he had learnt that the deceased man carried a knife for his own protection and as a tool for housebreaking. The appellant said that on the morning in question, when he decided to confront the man, he took a knife from his unit and went to where the man was standing outside a neighbouring unit. The appellant immediately assaulted the man, grabbing him by the throat and around his neck and pulling him back from a railing. He said that there was a struggle, during which the appellant was telling the deceased man that he was not to come around to the building anymore. He let the deceased go, having held him in a headlock. He said that the deceased then flung his arm at the appellant in an aggressive manner and, in an “instinctive reflex action,” the appellant’s arm, at the end of which was the appellant’s knife, came into contact with the deceased.

Decision

Reasons for decision

And unlike the comments in Knight, there was no unfairness which could have resulted from these comments. The effect of the comments, if any, was likely to enhance whatever weight the jury might have given to that evidence of Mr Baira which assisted the defence case. The jury could not have thought less of Mr Baira’s evidence for these comments. This was not a case, such as Knight, where the judge’s comments about indigenous witnesses detracted from evidence favouring the defence case.Conclusion For these reasons there was no error or irregularity in the comments of which complaint is made and the sole ground of appeal must be rejected. I would order that the appeal be dismissed. DOUGLAS J: I agree with McMurdo JA’s reasons and the order proposed.

Ratio Decidendi

Legal Principle Established

Section 632 of the Code is as follows:Corroboration(1)A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.Note-See section 52 (Sedition), 125 (Evidence on charge of perjury) and 195 (Evidence).(2)On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.(3)Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interest of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.”The appellant’s principal argument is that what was said in those passages was inconsistent with the proviso in s 632(3), because the judge thereby suggested to the jury that the law regards indigenous persons as unreliable witnesses. The argument requires an analysis of the passages which I have set out, but it is first necessary to discuss the effect of s 632. Section 632 was analysed by the High Court in Robinson v The Queen.[24]The question in that case was whether it had been necessary for the trial judge to give a warning about convicting on the basis of the complainant’s evidence, when there were particular features of that evidence which, in the interests of justice, were said to have required it. This involved a question of whether s 632(2), on its proper interpretation, meant that such a warning was unnecessary.[24](1999) 197 CLR 162. It was held that s 632(2) did not abrogate the general requirement of the law to give a warning whenever it is necessary to do so to avoid a risk of a miscarriage of justice. Instead, s 632(2), and s 632(3), properly understood, were enacted to displace the common law rules which regarded certain classes of persons as unreliable witnesses and which required trial judges to warn juries of the dangers of acting upon their testimony. The Court said:[25]“[18] Sub-section (1) of s 632 does not materially alter the common law, putting to one side the exceptional case of perjury. As Lord Diplock explained in Director of Public Prosecutions v Hester[26], in common law systems, unlike some other systems, an accused can be convicted on the testimony of a single witness. The sub-section restates the general common law rule, and, to an extent, establishes the context of what is to follow.[19]Sub-section (2) is to be understood in the light of common law rules which developed by way of qualification to the general principle stated above. Since an accused person could be convicted on the evidence of one witness only, the law was required to address the problem of unreliability. Such unreliability could arise from matters personal to the witness, or from the circumstances of a particular case. The law requires a warning to be given “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”[27]. However, as was held in Longman v The Queen[28], in relation to a similar Western Australian provision, the sub-section is not directed to such a general requirement. Rather, it is aimed at a more specific rule, by which the common law identified certain classes of case where evidence was considered to suffer from intrinsic lack of reliability. Although the classes were not closed, they included certain well-established categories. Thus, in Carr v The Queen[29], reference was made to “the rules which oblige a trial judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence and the sworn evidence of a child”. It will be noted that the present case fell into both of the second and third categories. The reasons for those categories were discussed in such cases as Longman v The Queen[30] and B v The Queen[31]. They included what are now rejected as “stereotypical assumptions”[32].[20]Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.”The “imperfect symmetry,” described at the end of that passage, was explained by the Court as follows:[33]“Section 632 distinguishes between witnesses and complainants. Ordinarily, in this context, a complainant is a species of the genus witness. The generic term is used in sub-section (2), but the concluding words of sub-section (3) are specific. In that respect the relationship between the two sub-sections lacks complete symmetry. Perhaps the explanation is that the drafter had mainly in mind sexual cases, but the section is not limited to sexual offences, and the common law’s categories of potentially unreliable witnesses included some who were not complainants.”A consequence of that observation was the amendment, in the following year, of s 632(3), to substitute the word “persons” for “complainants”.[34][25]Ibid at 167-168.[26][1973] AC 296 at 324.[27]Longman v The Queen (1989) 168 CLR 79 at 86. See also Bromley v The Queen (1986) 161 CLR 314 at 319, 323-325; Carr v The Queen (1988) 165 CLR 314 at 330.[28](1989) 168 CLR 79.[29](1988) 165 CLR 314 at 318-319.[30](1989) 168 CLR 79 at 91-94.[31](1992) 175 CLR 599 at 616.[32]R v Ewanchuk [1999] 1 SCR 330 at 336.[33](1999) 197 CLR 162 at 169-170 [22].[34]Criminal Law Amendment Act 2000 (Qld) s 31.