Smith v The State of Western Australia
[2021] WASCA 17
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 17
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 9 NOVEMBER 2020
DELIVERED : 5 FEBRUARY 2021
FILE NO/S: CACR 4 of 2020
BETWEEN: ANDRE KEVIN SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAVRIANOU DCJ
File Number : IND 1109 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of unlawfully doing grievous bodily harm - Whether the verdict of guilty was unreasonable or not supported having regard to the evidence - Whether a miscarriage of justice occurred because the prosecutor, in cross-examination and in his closing address, sought impermissibly to discredit a defence witness on the basis that the witness had received a certificate under s 11 of the Evidence Act 1906 (WA)
Legislation:
Criminal Code (WA), s 297(1)
Evidence Act 1906 (WA), s 11
Result:
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr C M Townsend |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412
Attorney‑General (WA) v Cockram (1990) 2 WAR 477
Australian Securities & Investments Commission v ABC Fund Managers Ltd [2001] VSC 383; (2001) 39 ACSR 443
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Blunt v Park Lane Hotel Ltd [1942] 2 KB 253
Brebner v Perry [1961] SASR 177
C v T (1995) 58 FCR 1
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Hugo v The Queen [2000] WASCA 199; (2000) 113 A Crim R 484
Jackson v Gamble [1983] 1 VR 552
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markovina v The Queen [No 2] (1997) 19 WAR 119
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Pappas v New World Oil Developments Pty Ltd (1993) 43 FCR 594
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Hood (1997) 91 A Crim R 526
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Roberts [2004] VSCA 1; (2004) 9 VR 295
Re Gordon (1988) 18 FCR 366
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Thompson v Bella-Lewis [1997] 1 Qd R 429
Trudgian v The State of Western Australia [2006] WASCA 271; (2006) 33 WAR 163
Woods v Smith [1976] WAR 13
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on indictment with one count.
The count alleged that on 22 July 2017, at Hillarys, the appellant unlawfully did grievous bodily harm to Paul Mitchell, contrary to s 297(1) of Criminal Code (WA).
On 26 June 2019, after a trial before Stavrianou DCJ and a jury, the appellant was convicted as charged.
The trial judge sentenced the appellant to 3 years' immediate imprisonment. The sentence was backdated to 18 December 2019. A parole eligibility order was made.
The appellant relies upon two grounds of appeal. Ground 1 alleges that the verdict of guilty was unreasonable and was not supported having regard to the evidence. Ground 2 alleges that a miscarriage of justice occurred because the prosecutor, in cross‑examination and in his closing address, sought impermissibly to discredit the defence witness, Kyle Smith, on the basis that Kyle Smith had received a certificate from his Honour pursuant to s 11 of the Evidence Act 1906 (WA).
We would refuse leave to appeal on ground 1 and grant leave to appeal on ground 2. Neither of the grounds has been made out. The appeal must be dismissed.
The State's case at trial
The State's case at trial was that on 22 July 2017, at The Northshore Tavern in Hillarys, the appellant unlawfully did grievous bodily harm to Mr Mitchell.
The State alleged that an altercation occurred outside the Tavern between Mr Mitchell and two other males including the appellant. The altercation precipitated a fight involving many people. After the fight had subsided, the appellant punched Mr Mitchell to the head. Mr Mitchell fell backwards and struck his head on the concrete footpath. Mr Mitchell suffered severe injuries including a fractured skull and a subdural haemorrhage.
The State relied, to a significant extent, upon identification evidence given by Matthew Jackson and Travis Davies. CCTV footage from the Tavern did not depict the incident in which the appellant struck Mr Mitchell.
The appellant's case at trial
The appellant's case at trial was that the appellant did not strike the blow which caused Mr Mitchell to suffer grievous bodily harm. Rather, the blow was struck by the appellant's brother, Kyle Smith.
The appellant did not give evidence in his own defence.
Kyle Smith gave evidence as a defence witness. Kyle Smith said that he had struck the blow which caused Mr Mitchell to suffer grievous bodily harm. Kyle Smith's evidence was supported by his partner, Michelle Woods, who was called by the State. The appellant also called other witnesses who supported Kyle Smith's evidence in some respects. However, none of those witnesses said that they saw who had punched Mr Mitchell.
Ground 1: the evidence at the trial
An overview of relevant evidence given by the principal witnesses at the trial is as follows.
Mr Mitchell gave evidence that he was at the Tavern on the date he was assaulted. Mr Mitchell could not recall the time of his arrival at the Tavern. His last recollection was of being outside the Tavern and then of awakening at a hospital (ts 37 ‑ 40).
Mr Jackson gave relevant evidence to the following effect:
(a)Mr Jackson was inside the Tavern when fighting began outside.
(b)Mr Jackson ran outside. He saw people punching Travis Davies in a corner to the left of the Tavern doors. Travis Davies was squatting on the ground. Mr Jackson endeavoured to pull people away from Travis Davies (ts 138 ‑ 139, 168 ‑ 170).
(c)Mr Jackson noticed that Adam Pyc had been knocked into a garden to the right of the Tavern doors. He went to Mr Pyc's assistance and helped him get to his feet (ts 139 ‑ 140).
(d)Mr Jackson said that one of the men involved in the fighting wore a hooded jumper. The hood was behind the man's head. The man had a thick build and tattoos on his hands (ts 139). Mr Jackson identified this man in CCTV footage (ts 149). The man he identified was Kyle Smith.
(e)Mr Jackson said that another man involved in the fighting wore a t-shirt and had tattoos on his arm, neck and face (ts 140). Mr Jackson identified this man in CCTV footage (ts 150). The man he identified was the appellant.
(f)As he was helping Mr Pyc, Mr Jackson looked towards the carpark and saw Mr Mitchell being punched. Mr Mitchell had been standing on the path between the Tavern and the carpark. Mr Jackson described the punch as a 'king hit … a blindside hit. Didn't see it coming' (ts 141). When he was struck, Mr Mitchell dropped instantly. His head hit the concrete. It sounded like a gunshot (ts 143).
(g)Mr Jackson saw the man who struck Mr Mitchell come from the carpark (ts 141). The man who struck Mr Mitchell was the man Mr Jackson had seen previously wearing a t-shirt and with tattoos on his arm, neck and face (ts 142). Mr Jackson described the face tattoo as 'just a small sort of striped one or a stripe towards the eyes'. It was a stripe 'towards or down the side of one eye' (ts 142). Mr Jackson described the neck tattoo as covering the whole width of the man's neck and the arm tattoo as a sleeve tattoo (ts 142). The man whom Mr Jackson identified as having struck Mr Mitchell was close to Mr Jackson's height (ts 144). Mr Jackson is 176 cm in height (ts 229). The man who struck Mr Mitchell may have been taller than Mr Jackson (ts 229). The man who struck Mr Mitchell had a little bit of stubble on his face and very short hair (ts 144, 229 ‑ 230).
(h)Mr Jackson saw another fight in the carpark. This fight involved Keegan Davies and the other man with tattoos who wore a hooded jumper (ts 143, 232).
Travis Davies gave relevant evidence to the following effect:
(a)Travis Davies saw two men approach Mr Mitchell outside the Tavern. Some words were exchanged. The two men then began throwing punches at Mr Mitchell. The two men were face to face with Mr Mitchell, but were facing away from Travis Davies.
(b)Travis Davies described the two men as follows:
One of them was pretty similar height to me, 175, 180 centimetres, wearing a cap, quite a stocky build, wearing dark clothing. The other gentleman was similar sort of size, maybe a tiny bit smaller. Stocky build again. Had a small tattoo on his face, and yeah, he was wearing sort of slightly lighter clothing. That's about all I can remember.
Whereabouts on his face was this small tattoo? Just below his eye (ts 312).
(c)Travis Davies and Mr Pyc endeavoured to get between the two men, on the one hand, and Mr Mitchell, on the other. Both Travis Davies and Mr Pyc were punched (ts 312 ‑ 314). Travis Davies then put his arms above his head and backed into a corner (ts 314).
(d)Travis Davies heard the voice of his friend, Blake Gordon. The punches then stopped (ts 314 ‑ 315). Travis Davies started looking for his brother, Keegan Davies. Travis Davies saw Keegan Davies in the carpark 'squaring up' with another man. He said the other man was one of the two 'original men' he had previously seen approach and throw punches at Mr Mitchell outside the Tavern. It was the man who was initially wearing a hat (ts 315). Travis Davies started walking towards Keegan Davies and the other man. He saw Mr Mitchell, whom he described as standing on the footpath and looking startled. Travis Davies said there was no one standing next to Mr Mitchell. Travis Davies then saw a man whom he described as one of the 'original men' he had seen with a tattoo on his face. This man, with the tattoo on his face, was standing in the carpark. The man then ran towards Mr Mitchell and struck him. Mr Mitchell went limp, fell backwards and hit his head on the concrete (ts 316, 369 ‑ 371).
Keegan Davies gave relevant evidence to the following effect:
(a)Keegan Davies saw men punching his brother, Travis Davies. Keegan Davies intervened to assist Travis Davies (ts 385 ‑ 386). Keegan Davies said that one of the men who was punching Travis Davies had dreadlocks. However, when he was shown CCTV footage, Keegan Davies agreed that he was mistaken about the involvement of the man with dreadlocks in that part of the incident (ts 386, 416, 418 - 419).
(b)Keegan Davies was punched to the back of the head (ts 386). He turned and saw a man whom he described as heavily tattooed with tattoos on his hands and arms. The man was about 175 cm tall and had short brown hair (ts 387). Keegan Davies identified this man on the CCTV footage. The man he identified was Kyle Smith. Keegan Davies also identified another man on the CCTV footage (ts 394). The other man he identified was the appellant. Keegan Davies said that this other man had a small tattoo 'sort of under his eye', similar to a five cent piece (ts 388).
(c)Keegan Davies' altercation with Kyle Smith moved to the carpark. Keegan Davies punched Kyle Smith to the side of his face. The punch broke Keegan Davies' hand. Keegan Davies then began to back away. Keegan Davies noticed that he had caused a cut to Kyle Smith's face. However, Keegan Davies could not recall if the cut was bleeding (ts 388 ‑ 389, 392, 425 ‑ 427). At that point, Keegan Davies heard a sound. He turned towards the direction of the sound and saw Mr Mitchell lying on the ground. Keegan Davies noticed that the man with a tattoo on his face was in the vicinity of Mr Mitchell (ts 390 ‑ 392). Keegan Davies heard the man with the tattoo on his face and another man 'mouthing off' at the bouncers (ts 392, 813).
Mr Gordon gave relevant evidence to the following effect:
(a)Mr Gordon was at the Tavern on the night in question. He went outside with Mr Jackson and Mr Pyc to smoke a cigarette. After he returned inside the Tavern, he noticed 'a bit of a scuffle' occurring outside (ts 59 ‑ 60).
(b)Mr Gordon went outside again and saw Travis Davies being punched. Travis Davies was in the corner near the front doors of the Tavern. Mr Gordon tried to intervene (ts 60 ‑ 61).
(c)Mr Gordon was pushed aside when he was endeavouring to stop Travis Davies from becoming involved further in the confrontation (ts 134).
(d)After intervening in the fight involving Travis Davies, Mr Gordon 'noticed that someone had been hit and [Mr Mitchell] was on the floor' (ts 61). However, Mr Gordon did not see Mr Mitchell being struck (ts 62). Mr Gordon arrived within 5 to 10 seconds at the location where Mr Mitchell lay on the ground. At that time, a man with a face tattoo was about 15 to 20 m away (ts 62, 132).
(e)Mr Gordon consumed up to 20 alcoholic drinks on the night in question and his memory was impaired as a result of his alcohol consumption (ts 80, 83).
Mr Pyc gave relevant evidence to the following effect:
(a)Mr Pyc was at the Tavern on the night in question (ts 266).
(b)At one point in the evening Mr Pyc was outside the Tavern with Mr Mitchell and Travis Davies. A woman approached and spoke to Mr Mitchell. The woman was with two men. One of the men was wearing a hoodie. The other had tattoos and short hair. There was a discussion about football involving Mr Pyc, Mr Mitchell, Travis Davies and the woman. The two men who had been with the woman were not involved in the discussion. The woman and the two men she had been with went inside the Tavern. Less than two minutes later, the two men came outside the Tavern. The two men 'got very close face-to-face to [Mr Mitchell]'. One of the two men (whom Mr Pyc believed was the one with the tattoos) said to Mr Mitchell, 'was it worth it? Was it worth it, cunt?' Next, the two men starting throwing punches at Mr Mitchell. Mr Pyc endeavored to prevent Mr Mitchell from being struck. The man with the tattoos then started throwing punches towards Mr Pyc's head. Mr Pyc walked backwards into the carpark. None of the punches connected (ts 266 ‑ 270).
(c)Mr Pyc then looked back towards the Tavern and saw a crowd of people fighting in the corner or someone getting punched. He began walking in that direction and saw Travis Davies on the floor trying to protect himself from people trying to punch him. When Mr Pyc arrived at the kerb of the carpark, about three or four metres away from Travis Davies, he thought to himself that he had to help Travis Davies and 'try and get people off him'. What then happened was 'a blur to [Mr Pyc]'. Mr Pyc's next memory was standing on the footpath looking at Keegan Davies 'facing up with the gentleman in the hoodie'. By 'facing up', Mr Pyc meant that 'they were ready to fight each other or just fight, so they were both arms up'. The hands of Keegan Davies and the man in the hoodie were clenched into a fist (ts 270 ‑ 272).
(d)Next, Mr Pyc heard 'people yelling and a sound of maybe [Mr Mitchell] hitting the floor or the punch, unclear which sound it was'. Mr Pyc heard a sound like 'a hard knock'. Mr Pyc 'turned towards where [Mr Mitchell] was, where the sound [had] come from'. Mr Pyc saw Mr Mitchell on the ground unconscious. Mr Pyc then assisted Mr Mitchell (ts 272 ‑ 273).
(e)Mr Pyc did not recall any punches connecting with him. In particular, he did not recall receiving a punch which caused him to pass out in a garden bed (ts 282).
(f)Mr Pyc conceded that he had discussed the events of the night in question with others (ts 285 ‑ 286).
Riley Noonan gave relevant evidence to the following effect:
(a)On the night in question Mr Noonan was working as a bartender at the Tavern (ts 486).
(b)Mr Noonan gave evidence about two groups of people who were involved in an altercation at or in the vicinity of the Tavern. The altercation became more aggressive and violent as it progressed (ts 487).
(c)Mr Noonan described one of the groups as the 'Caucasian group' and the other as the 'Kiwi group' (ts 488, 493).
(d)Mr Noonan identified three individuals. One of the men in the 'Kiwi group' was stocky, wore a black cap and had 'Maori or tribal' tattoos. That man's clothing included a black long-sleeve t-shirt, rolled up or pushed up to his elbows (ts 487 ‑ 490, 494). The man who was wearing the black cap behaved aggressively and was throwing 'wide punches' (ts 488 ‑ 489, 494).
(e)Mr Noonan said that he saw a member of the 'Caucasian group' being 'sat down in the fight' and that the member of the 'Kiwi group' who was wearing the black cap and had the 'Maori or tribal' tattoo on his arm was throwing 'wide punches' in his direction (ts 488). The man who was 'sat down in the fight' was 'not in a great shape'. That man had light brown hair and was on the ground to the right of the Tavern doors near the garden (ts 489). Mr Noonan saw this man stand up. He was unsure whether the man had been assisted by others (ts 491).
(f)Mr Noonan did not see or hear how Mr Mitchell came to be injured (ts 492 ‑ 493).
Kyle Smith gave relevant evidence to the following effect:
(a)Kyle Smith said that, during the night in question, he went outside the Tavern with his brother, the appellant, to have a cigarette (ts 562).
(b)After he returned inside the Tavern, Kyle Smith was told by his partner, Ms Woods, that a man, who was identified as Mr Mitchell, had attempted to 'high five' her, but had slapped her on the buttock (ts 565).
(c)Kyle Smith said that he went outside again and the appellant followed him. Kyle Smith asserted that he confronted Mr Mitchell and asked him whether he had slapped Ms Woods on the buttock. Mr Mitchell confirmed that he had slapped her on the buttock and said words to the effect, 'what are you going to do about it?' (ts 563 - 564). Kyle Smith said he responded, 'was it worth it, cunt?'. Kyle Smith said he then punched Mr Mitchell with a closed fist to his face. Mr Mitchell had then 'stumbled back'. Kyle Smith did not throw only that punch. He also threw other punches (ts 564).
(d)Kyle Smith said that he was involved in fighting 'one on one' with a male who was short, stocky and had a beard. The male was wearing a red shirt. As a result of that fight, Kyle Smith's left eye was injured. He had blood down his face and in his eye (ts 565).
(e)Kyle Smith said he then turned around, stepped onto the footpath and saw the man (Mr Mitchell) whom Kyle Smith had punched previously. Kyle Smith punched Mr Mitchell again. Kyle Smith could see that Mr Mitchell was unconscious before he fell and hit his head on the concrete. Upon hearing police sirens and seeing police lights, Kyle Smith decided to leave the scene (ts 566).
(f)Kyle Smith explained in cross‑examination that he had refused to answer questions asked by the police because he had no trust in the investigating officer, Detective Herangi (ts 639).
Ms Woods gave relevant evidence to the following effect:
(a)Ms Woods was Kyle Smith's partner (ts 429). During the night in question, she consumed about eight alcoholic drinks, comprising vodka and lemonade, and 'shots' (ts 432).
(b)Ms Woods went outside to smoke. She spoke to two men about AFL football (ts 434 ‑ 435). The discussion was friendly (ts 436).
(c)Ms Woods said that as she was about to re‑enter the Tavern, she went to 'high five' the taller of the men to whom she had been speaking (being Mr Mitchell). Ms Woods said that Mr Mitchell 'followed through' and grabbed her on the buttock (ts 436).
(d)Ms Woods told Kyle Smith what had occurred with Mr Mitchell. The appellant asked her whether Mr Mitchell had touched her on the buttock (ts 437 ‑ 438).
(e)Ms Woods gave evidence that Kyle Smith had a cut above his left eye and that there was a lot of blood as a result of the cut (ts 440). She also gave evidence that she saw Kyle Smith face‑to‑face with Mr Mitchell, and she saw Kyle Smith hit Mr Mitchell and Mr Mitchell 'instantly drop' (ts 442).
Hayley Williams gave relevant evidence to the following effect:
(a)Ms Williams was the appellant's wife (ts 753). At the time of the trial they were in the process of dissolving their marriage (ts 753).
(b)When she was in the Tavern, she looked through a glass door and saw 'an altercation' (ts 756). There was a 'massive brawl' (ts 756). The brawl was occurring mainly to the right of the entrance to the Tavern. The brawl extended into the carpark (ts 756).
(c)Ms Williams went outside (ts 756).
(d)Ms Williams said that during the fight a taller man was knocked down twice. The taller man then got up and began fighting again. He got knocked down again and then got back up for the third time. However, Ms Williams did not see the 'final blow'. The taller man was unknown to Ms Williams. The last time Ms Williams saw the taller man he was on the ground. She did not see him get up again. She thought she saw one of his group of friends next to him. Ms Williams could not identify the person or persons whom the taller man was fighting. There were 'so many people' (ts 757 - 759).
(e)Ms Williams did not give a statement to the police (ts 770). However, she maintained that she never refused to give a statement (ts 775).
Ground 1: counsel for the appellant's submissions
Counsel for the appellant submitted that this court ought to conclude that there is a reasonable doubt as to whether the appellant was guilty of the offence of which he was convicted. Counsel contended that the 'fundamental evidence' adduced by the State had discrepancies and inconsistencies. Those discrepancies and inconsistencies, having regard to the trial record as a whole, should have given rise to a reasonable doubt as to the appellant's guilt.
The discrepancies and inconsistencies referred to by counsel for the appellant are as follows:
(a)The State relied, largely, upon the identification evidence given by Mr Jackson and Travis Davies.
(b)Mr Jackson's evidence was contradicted by Mr Pyc. Mr Jackson claimed to have been in a position to have seen Mr Mitchell being struck because Mr Jackson needed to assist Mr Pyc to get up from the garden. However, Mr Pyc gave no such evidence.
(c)Notwithstanding that Mr Jackson claimed that he saw Mr Mitchell being struck while Mr Jackson rendered assistance to Mr Pyc, Mr Jackson could not say which fist was used by the assailant, where Mr Mitchell was struck or how Mr Mitchell fell.
(d)Mr Jackson's evidence that the person who struck Mr Mitchell was of a similar height to him was inconsistent with the appellant being in fact 10 cm shorter than Mr Jackson. However, that evidence of Mr Jackson was consistent with Kyle Smith's height. Mr Jackson's evidence that the face tattoo he saw on the assailant was a 'stripe' was inconsistent with the appellant's face tattoo. However, Mr Jackson accepted that he could not discount the possibility that what he had seen was, in fact, a wound. At the material time, Kyle Smith had a wound near his eye.
(e)The reliability of Travis Davies' evidence was questionable. He accepted that he gave a statement to the police to the effect that the man with the face tattoo struck Mr Mitchell at the beginning of the incident. However, despite having the benefit of close proximity to the assault and with a reasonable opportunity to see the assailant, Travis Davies was incorrect in his recollection. That fact called into question the reliability of Travis Davies' evidence with respect to the final blow.
(f)Mr Gordon did not see the final blow. He endeavoured to stop Travis Davies from becoming involved further in the confrontation. Mr Gordon was pushed aside at or about the time Mr Mitchell hit the ground. Travis Davies placed himself, however, in a different location.
(g)Mr Gordon claimed to have arrived, at the location where Mr Mitchell hit the ground, within 5 to 10 seconds. Mr Gordon accepted that when he arrived the person with the face tattoo was about 15 to 20 m away.
It was submitted that Kyle Smith admitted having struck Mr Mitchell in the manner which the State alleged that the appellant had struck Mr Mitchell. Kyle Smith's evidence was corroborated by Ms Woods and Ms Williams. Significantly, as a result of the interaction between Mr Mitchell and Ms Woods, Kyle Smith had a motive to strike Mr Mitchell.
According to counsel, the evidence of Kyle Smith, in conjunction with the evidence of Ms Woods and Ms Williams, should have caused the jury to entertain a reasonable doubt as to the appellant's guilt.
In any event, the credibility and reliability of the critical witnesses relied upon by the State, and the discrepancies and inconsistencies in their evidence, should have caused the jury to have a reasonable doubt.
Counsel pointed out that, after a seven‑day trial, the jury deliberated for less than two hours before delivering their verdict. The jury did not ask any questions of the trial judge.
It was contended that the jury should have entertained a reasonable doubt. The jury failed to give effect to that doubt. Accordingly, so it was submitted, it would be dangerous for this court to permit the verdict of guilty to stand.
Ground 1: counsel for the State's submissions
Counsel for the State submitted that, having regard to the trial record and the many advantages enjoyed by the jury compared to this court, the appellant had fallen well short of demonstrating that the jury must have had a reasonable doubt about the appellant's guilt. It was submitted that there is no reasonable possibility that an innocent man has been convicted.
Ground 1: its merits
It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[1] Zaburoni v The Queen;[2] GAX v The Queen.[3]
[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
[2] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).
[3] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[4]
[4] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[5]
[5] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[6] SKA [13].
[6] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
In Pell v The Queen,[7] the High Court made these observations about the assessment of the credibility of a witness by the jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)
[7] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
The High Court in Pell [39] also made these observations, in the context of the evidence of a complainant in a child sex case, about the function of the appellate court in determining a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (footnote omitted)
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 ‑ 495). See also R v Hillier;[8] Fitzgerald v The Queen;[9] R vBaden‑Clay.[10]
[8] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).
[9] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
[10] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[11] GAX [25].
[11] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).
The nature and extent of the appellate court's task, in a particular case, will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant's state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].
In the present case, the State's case against the appellant was, in essence, based upon the following propositions. First, Mr Jackson and Travis Davies saw Mr Mitchell being punched. The appellant struck Mr Mitchell. The punch caused Mr Mitchell to fall and hit his head on the concrete. Secondly, there were other witnesses whose evidence negated the reasonable possibility that Kyle Smith (and not the appellant) was the offender. Thirdly, there were powerful reasons why the jury should reject the evidence of Kyle Smith and Ms Woods to the effect that Kyle Smith was the offender.
As to the appellant's submissions about the credibility and reliability of Mr Jackson's evidence:
(a)Mr Jackson accepted in evidence that he had discussed the relevant events with, at least, Travis Davies (ts 176, 201). It would have been extraordinary, given the nature of the events that occurred on the night in question, if Mr Jackson had not discussed aspects of those events with any of his friends. It was not put to Mr Jackson at the trial that any specific aspects of his evidence had been influenced by others.
(b)Mr Jackson's account of some relevant events in his statement to the police differed from his account of those events in his evidence. In particular, Mr Jackson said in his statement that the offender had no facial hair, whereas in his evidence he said that the offender had 'a bit of stubble on his face'. Mr Jackson explained that in his statement he would have been referring to a beard, a moustache, 'something outstanding'. Secondly, Mr Jackson said in his statement that he could not recall what the offender was wearing, but he could see that the man had tattoos and so he assumed that the man was wearing a short sleeved top, perhaps a t-shirt or a short sleeved shirt, whereas in his evidence he said that the offender wore a t‑shirt. In our opinion, the jury was entitled to take the view that the differences we have mentioned did not materially detract from the State's case or materially advance the appellant's case in relation to whether Mr Jackson had correctly identified the appellant as the offender.
(c)Mr Jackson was unable to describe a number of details, including which hand the offender had used to punch Mr Mitchell, how Mr Mitchell fell or what part of Mr Mitchell's head struck the concrete. However, none of the other witnesses gave descriptions which included that degree of particularity. It was a matter for the jury to assess whether Mr Jackson should have been expected to recall the details he was unable to describe and to assess whether (and, if so, to what extent) Mr Jackson's credibility and reliability as a witness was affected by his inability to describe those details.
(d)Mr Jackson did not refer in his evidence to any members of his group throwing punches during the fighting. It was a matter for the jury to assess whether (and, if so, to what extent) the absence of any reference by Mr Jackson to any members of his group throwing punches during the fighting affected Mr Jackson's credibility and reliability as a witness. However, there was no evidence at the trial that any member of Mr Jackson's group had punched Mr Mitchell. In our opinion, this issue did not materially detract from the State's case or materially advance the appellant's case in relation to whether Mr Jackson had correctly identified the appellant as the offender.
(e)It was a matter for the jury to assess the significance, if any, of the discrepancy between Mr Jackson's estimate of the height of the man whom Mr Jackson identified as having struck Mr Mitchell, on the one hand, and the appellant's actual height, on the other, having regard to Mr Jackson's evidence as a whole and the circumstances surrounding Mr Jackson's opportunity on the night in question to form an opinion as to the assailant's height.
(f)Mr Jackson ultimately conceded in cross‑examination that he could not discount the possibility that the 'stripe' facial tattoo that he saw on the assailant may in fact have been a facial injury which had resulted in bleeding (ts 223 ‑ 227). It was a matter for the jury to assess the significance, if any, of that concession having regard to:
(i)Mr Jackson's evidence in cross‑examination that what was depicted in the photograph he was shown of Kyle Smith's face could not have been blood (ts 234); and
(ii)the jury's ability to view that photograph, as well as other photographs which depicted the appellant's tattoos, and form their own view of the matter.
(g)Mr Jackson's evidence was inconsistent with Mr Pyc's evidence in that Mr Jackson gave evidence that he was in a position to have seen Mr Mitchell being struck because Mr Jackson needed to assist Mr Pyc to get up from the garden, whereas Mr Pyc gave no such evidence. Mr Pyc said in evidence that he had no problems with his memory (ts 286 ‑ 288). However, Mr Pyc's evidence in that respect must be read together with other evidence he gave. In particular, after describing several men assaulting Travis Davies, Mr Pyc said that he moved to a position near the kerb line and he remembered thinking that he needed to assist Travis Davies by endeavouring to remove the men who were assaulting him 'and then it is a blur to me what - that's all I actually do remember' (ts 271 ‑ 272). Mr Pyc's next recollection of the events was that he was standing near the carpark and saw Keegan Davies 'facing up with the gentleman in the hoodie' (ts 272). That recollection was to an altercation in the carpark between Keegan Davies and Kyle Smith. While he was watching that altercation, Mr Pyc heard a bang and people yelling. He turned towards the direction of the noise and saw Mr Mitchell unconscious on the ground (ts 272 ‑ 273). If the jury accepted that evidence of Mr Pyc, it demonstrated that the blow which rendered Mr Mitchell unconscious and caused his grievous bodily harm was not struck by Kyle Smith.
(h)It is significant that Mr Jackson correctly identified Kyle Smith as the person who was fighting Keegan Davies in the carpark. That identification was supported by other evidence, including an admission by Kyle Smith and the evidence of Mr Pyc. The altercation between Kyle Smith and Keegan Davies occurred at about the time Mr Mitchell was punched, fell and hit his head on the concrete.
(i)It was open to the jury to be satisfied that Mr Jackson's evidence as to Mr Pyc being knocked down in the garden was supported by the evidence of Mr Noonan. Mr Noonan gave evidence of an altercation between two groups of men. He referred to one group as 'Caucasian' and the other group as 'Kiwi' (ts 487). The appellant, Kyle Smith and other members of their group were from New Zealand. Mr Noonan described one of the 'Kiwi group' as being stocky, wearing a black cap and having a 'Maori or tribal' tattoo on his arm (ts 487 ‑ 488). That description is consistent with other evidence that identified the relevant member of the 'Kiwi group' as Kyle Smith. Mr Noonan also gave evidence that he saw a member of the 'Caucasian group' being 'sat down in the fight' and that the member of the 'Kiwi group' who was wearing the black cap and had the 'Maori or tribal' tattoo on his arm was throwing 'wide punches' in his direction (ts 488). The man who was 'sat down in the fight' was 'not in a great shape'. That man had light brown hair and was on the ground to the right of the Tavern doors near the garden (ts 489). Mr Noonan saw this man stand up. He was unsure whether the man had been assisted by others (ts 491). It was open to the jury to conclude that the member of the 'Caucasian group' described by Mr Noonan was Mr Pyc. If the jury made that finding then Mr Noonan's evidence was capable of supporting the correctness of Mr Jackson's identification of the appellant as the offender.
As to the appellant's submissions about the credibility and reliability of Travis Davies' evidence:
(a)Travis Davies stated that the man who struck Mr Mitchell the final blow had a tattoo on his face just below his eye and that the man was about 180 cm in height (ts 322). That statement accurately described the tattoo on the appellant's face but did not accurately estimate the appellant's height. Travis Davies distinguished between that assailant and the other man who he said had thrown punches at Mr Mitchell on the basis that the assailant who had struck the final blow had a facial tattoo. Travis Davies also gave evidence that the shorter of the two men was the person who had struck Mr Mitchell the final blow (ts 337).
(b)Travis Davies said in his statement to the police that the man with the facial tattoo was the person who had punched Mr Mitchell at the beginning of the incident. However, it was accepted at the trial that Kyle Smith was the person who was responsible for that punch. This inconsistency was pointed out to the jury. It was a matter for the jury to assess whether (and, if so, to what extent) Travis Davies' error affected his credibility and reliability as a witness in other respects including his evidence which supported the proposition that the appellant was the offender.
(c)It is true that Travis Davies' evidence was inconsistent in some respects with Mr Gordon's evidence. Mr Gordon said that he saw Travis Davies being punched. According to Mr Gordon, Travis Davies was in a corner and was protecting his head. Mr Gordon intervened and endeavoured to assist Travis Davies (ts 60 ‑ 61). Mr Gordon was holding Travis Davies when Mr Gordon noticed Mr Mitchell 'on the floor' (ts 61). Mr Gordon admitted in evidence that his memory of the events of the evening was impaired by the amount of alcohol he had consumed (ts 83). The inconsistencies between the evidence of Travis Davies and the evidence of Mr Gordon were pointed out to the jury. It was a matter for the jury to assess whether (and, if so, to what extent) Travis Davies' credibility and reliability as a witness was undermined by the differences between his account of events and Mr Gordon's account of events.
As we have mentioned, Kyle Smith gave evidence to the effect that he (and not the appellant) was the offender. However, a number of matters emerged at the trial which had the capacity to damage his credibility and reliability as a witness. In particular:
(a)Kyle Smith said in evidence that he had consumed a couple of beers with dinner. He thought that during the dinner he had a couple of Jack Daniel's (ts 560, 663). However, during a video recorded interview with police on 2 August 2017, Kyle Smith replied 'I can't remember' to a question about how much alcohol he had consumed on the evening in question. Kyle Smith elaborated in the interview that he had drunk beers, but could not remember if he had consumed any 'top shelf stuff' (ts 664). At the trial, Kyle Smith sought to explain the inconsistency by asserting that in the interview he had been speaking to a police officer, and 'I tell him what I want to tell him' (ts 665).
(b)Kyle Smith admitted in evidence that he knew what evidence Ms Woods would be giving at the trial. He admitted that he was in court throughout her deposition hearing in the Perth Magistrates Court in April 2018 and that he knew what Ms Woods was going to say at the deposition hearing (ts 636 ‑ 637). Kyle Smith knew what Ms Woods claimed to have seen because he and Ms Woods had discussed what had happened. Kyle Smith knew that Ms Woods would say that she had seen Kyle Smith strike Mr Mitchell (ts 638).
(c)Kyle Smith admitted during his video recorded interview with police that he had punched Mr Mitchell at the beginning of the altercation and that he had later pleaded guilty to a charge of common assault. However, Kyle Smith did not tell the police who investigated the common assault that he had punched Mr Mitchell a second time, being the punch which caused Mr Mitchell to fall and strike his head on the concrete. Kyle Smith gave evidence that he concealed the second punch from the police who investigated the common assault because he feared being sent to prison and being deported. He admitted the common assault because he understood that a conviction for that offence would not result in a sentence of imprisonment or deportation. Kyle Smith admitted in evidence that he had calculated in his mind that he could admit the first punch but not the other (ts 639 ‑ 640).
(d)When Kyle Smith admitted during his video recorded interview with police that he had punched Mr Mitchell a second time, he replied 'I can't remember' in answer to a series of questions as to how he had struck Mr Mitchell on the second occasion. Although he had described the blow as a punch, when the police asked him during the interview how he had punched Mr Mitchell on the second occasion (in particular, whether it was a slap or whether he had used a closed fist), Kyle Smith responded, 'I can't remember'.
(e)Kyle Smith acknowledged during his video recorded interview with police that he understood that he did not have to answer any questions. On a number of occasions Kyle Smith replied 'no comment' when he did not want to answer a question (ts 669).
(f)Kyle Smith mentioned during his video recorded interview with police that he had been punched in the course of the altercation and that the punch had caused a cut above his eye which had bled. The punch occurred when he was fighting with Keegan Davies in the carpark. When Kyle Smith was asked by police whether he had seen anyone lying on the footpath, Kyle Smith responded that he had been struck in the eye and that he 'couldn’t see fuck all'. Kyle Smith gave evidence at the trial that he had told the police he 'couldn’t see fuck all' because he did not want to incriminate himself in relation to the grievous bodily harm suffered by Mr Mitchell. Kyle Smith said he thought that he would incriminate himself if he admitted to the police that he had seen Mr Mitchell on the ground (ts 671 ‑ 674).
(g)Kyle Smith admitted in his evidence that he had not later admitted having caused Mr Mitchell to suffer the grievous bodily harm, even though the appellant was subject to restrictive bail conditions before the trial and, as a consequence, the appellant was unable to visit their mother when she had suffered a stroke (ts 675).
(h)Kyle Smith reiterated during re-examination that he had told lies during his video recorded interview with police because he told the police what he wanted to tell them (ts 686).
As we have mentioned, Ms Woods was a State witness at the trial. She was not cross-examined. During her evidence-in-chief, Ms Woods said:
(a)On the night in question she was 'tipsy' but not drunk (ts 433).
(b)Although she had spoken with Mr Mitchell outside the tavern, she was unable to identify him in the CCTV footage (ts 450).
(c)She saw that the fight began when Kyle Smith struck Mr Mitchell. However, she could not describe anything else done by Kyle Smith during that part of the altercation and she could not say what the appellant was doing (ts 440).
(d)She saw Kyle Smith in the carpark. Kyle Smith had blood over his face. This caused her to 'freak out'. However, she could not say how that had happened (ts 440, 441).
(e)She saw Kyle Smith strike Mr Mitchell and she saw Mr Mitchell fall. However, she could not say how Kyle Smith had struck Mr Mitchell. Also, she could not say which hand Kyle Smith had used or what part of Mr Mitchell had been struck. Further, she could not say whether Kyle Smith had used a fist and she did not know whether Mr Mitchell got up after he had been struck (ts 442 ‑ 443).
In the present case, it is likely that the jury's advantage in hearing and seeing the witnesses was highly significant in the jury's assessment of their credibility and reliability. All of the principal witnesses, apart from Ms Woods, were cross-examined in detail, including in relation to any prior inconsistent statements, and by reference to the CCTV footage and photographs. The trial judge gave orthodox directions to the jury in relation to the potential dangers associated with identification evidence (ts 975 ‑ 982). His Honour also gave appropriate directions to the jury to the effect that the jury were free to accept or reject the evidence of a witness entirely or to accept parts and to reject other parts of the evidence of a witness (ts 909). His Honour noted that there were instances where the evidence of one State witness was inconsistent with the evidence of other State witnesses. His Honour also drew the jury's attention to internal inconsistencies in the evidence of the significant State witnesses.
In our opinion, after evaluating and weighing the competing evidence at the trial, in the context of the trial record as a whole, the jury was entitled:
(a)to accept the evidence of Mr Jackson and Travis Davies which supported the proposition that the appellant had punched Mr Mitchell to the head and that, as a result of that punch, Mr Mitchell had fallen backwards and had struck his head on the concrete footpath;
(b)to find that the appellant's punch had caused Mr Mitchell to suffer severe injuries including a fractured skull and a subdural haemorrhage;
(c) to reject the evidence of Kyle Smith that he had struck Mr Mitchell the final blow and that, as a result of the blow, Mr Mitchell had fallen backwards and struck his head on the concrete;
(d)to reject Ms Woods' evidence to the extent that it supported the appellant's case that Kyle Smith had struck the blow that had caused Mr Mitchell to suffer grievous bodily harm;
(e)to reject Ms Williams' evidence to the extent that it supported the appellant's case that Kyle Smith had struck the blow that had caused Mr Mitchell to suffer grievous bodily harm;
(f)to find that the alleged discrepancies and inconsistencies in the evidence of Mr Jackson (in particular, his identification evidence) were not of material significance;
(g)to find that the alleged discrepancies and inconsistencies in the evidence of Travis Davies (in particular, his identification evidence) were not of material significance; and
(h)to find, based on the evidence of Keegan Davies and Mr Pyc, that it was not reasonably possible that Kyle Smith had caused Mr Mitchell to suffer grievous bodily harm because, when Mr Mitchell suffered grievous bodily harm, Kyle Smith was involved in an altercation with Keegan Davies.
We do not accept counsel for the appellant's submission that the credibility and reliability of the critical witnesses relied upon by the State, and any discrepancies or inconsistencies in their evidence, should have caused the jury to have a reasonable doubt as to the appellant's guilt. Also, we do not accept counsel's submission to the effect that the fact that the jury deliberated for less than two hours before delivering their verdict, and the fact that the jury did not ask any questions of the trial judge, cast doubt over the proprietary or correctness of the appellant's conviction.
A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of evidence which they were entitled to accept, that the appellant was the offender who had struck Mr Mitchell and had caused him to fall to the ground, strike his head on the concrete and suffer serious injuries including the fractured skull and the subdural haemorrhage. A jury, acting reasonably, was entitled to conclude beyond reasonable doubt, upon the basis of Mr Jackson's evidence and Travis Davies' evidence, that it was the appellant (and not Kyle Smith) who had struck the blow which caused Mr Mitchell to suffer grievous bodily harm. A jury, acting reasonably, was entitled to conclude beyond reasonable doubt, upon the combined force of evidence which they were entitled to accept, that the appellant was the offender.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and by inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charged offence or as to the correctness of his conviction on that charge. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
Ground 1 is without merit.
Ground 2: Kyle Smith's refusal to answer on the ground of self‑incrimination
Shortly after Kyle Smith was affirmed, he said, in the presence of the jury, that he was unwilling to answer a question because it may incriminate him (ts 557).
The following exchange then occurred between the trial judge and Kyle Smith, in the presence of the jury:
Now, Mr Smith, under the Evidence Act I have power to give you a certificate in relation to the evidence that you propose to give. You've indicated that you're not prepared to answer on the basis that the answers you give may incriminate you?---Yes.
I'm satisfied in the circumstances that it is expedient to the ends of justice that you be compelled to answer the questions and I will compel you to answer the questions which are asked of you in this courtroom.
If you answer the questions and other questions that may be put to you in a satisfactory manner, I'll grant you a certificate that you were called as a witness in this trial and that your evidence was required for the ends of justice and was given to my satisfaction. Do you understand that?---Yes (ts 558).
After a brief discussion with the prosecutor, his Honour said, in the presence of the jury:
If I do decide to grant you a certificate, Mr Smith and members of the jury, it's not a finding of the credibility or truthfulness of the part of the witness. That remains a question for you to determine in this case.
The only protection which is afforded to his answers to the questions are that they're not admissible in evidence in criminal proceedings against him other than on a prosecution for perjury in giving his evidence before you. He could be prosecuted for the offence, but if he were prosecuted, his evidence in this trial could not be used against him as evidence in the prosecution (ts 558 ‑ 559).
The trial judge then informed Kyle Smith, in the presence of the jury, as follows:
So what's going to happen is you're going to be asked questions. When all of the evidence is complete, in other words when your examination‑in‑chief is completed, when the cross‑examination is completed by Mr Dungey, when the re‑examination is complete, I'll make a decision as to whether I should issue you with a certificate in relation to the matter?---Yes. Thank you, your Honour (ts 559).
Ground 2: the prosecutor's relevant cross-examination of Kyle Smith
The prosecutor put to Kyle Smith in cross‑examination that he was giving evidence to the effect that he (and not his brother, the appellant) was the offender out of loyalty to the appellant. Kyle Smith denied that proposition (ts 675). Kyle Smith insisted that he was the offender and that he was not endeavouring to assist the appellant to escape the consequences of the assault which the appellant allegedly committed (ts 675).
The following exchange then occurred between the prosecutor and Kyle Smith about Kyle Smith's evidence that he had struck the blow that had caused Mr Mitchell to suffer grievous bodily harm:
And you're saying it in court now because you can't be held answerable for what … you're confessing to doing?---I still can. I - I was told that I - I don't get any form of immunity or anything until after I've said what I said. If the judge believes me, then he grants me that.
I don't think it's whether the judge believes you. The - I'm sure his Honour will be at pains to say that - - -?---That's - that's - that's how I understood it when he was saying it the other day. That's what I understood.
…
You've gone and got legal advice before giving evidence?---Yes.
You well know it's got nothing to do with what the judge believes or doesn't believe?---I didn't know that, no.
Okay. Isn't what his Honour said to you on Friday:
'If you answer the questions and other questions that may be put to you in a satisfactory manner, I'll grant you a certificate that you were called as a witness in this trial and that your evidence was required for the ends of justice and was given to my satisfaction.'
Isn't that … what his Honour said?---So that's his satisfaction.
Yes?---That's … if he believes I'm saying it truthfully, then I'm granted it afterwards. That's what I understood.
Mr Smith, I suggest to you, you well know that answering questions in a satisfactory manner simply means answering the questions?---I've told you what I understood.
Not refusing to, not being aggressive, not being defensive, just answering questions satisfactorily?---He - - -
That's all it means and you well know that?---He told me he demands me to answer the questions asked by yourself or the lawyer (ts 675 ‑ 677).
Ground 2: the granting of the certificate pursuant to s 11 of the Evidence Act
Upon the completion of Kyle Smith's evidence, the trial judge said, in the presence of the jury, that Kyle Smith had answered 'the questions to [his Honour's] satisfaction' and that his Honour had decided to grant Kyle Smith a certificate pursuant to s 11 of the Evidence Act.
His Honour then addressed the jury as follows:
Members of the jury, as there were a few questions about it just then I just want to reiterate what I said before about the grant of the certificate. The grant of the certificate as each of the lawyers has put to you is not a finding by me as to the truthfulness or reliability of the witness's evidence and I only say that, I'm not seeking to emphasise that point at this stage other than to tell you what I said before because each of the lawyers has referred you to it and I also said that the only protection given to the witness is that the answers which he gives in relation to the - in court, his answers are not admissible in evidence in criminal proceedings against him in relation - if he were to be charged in relation to this particular offence that this accused faces. He could be prosecuted for the offence of perjury in relation to the matter so that's all I wish to say to you at this stage, members of the jury (ts 687).
Ground 2: the prosecutor's closing address
During his closing address, the prosecutor made these submissions about Kyle Smith's evidence and the certificate that the trial judge had granted Kyle Smith pursuant to s 11 of the Evidence Act:
As to Kyle Smith, the State submits to you that you should find his so‑called confession, and I say so‑called because I do not accept it and the State does not accept it's a real, genuine confession, to causing grievous bodily harm to [Mr] Mitchell. The State submits you should find it of little or no value.
The [admission] was made at the eleventh hour in the course of this trial in the defence case. The admission was made without any consequences for the person making it because you heard his Honour the judge say to Kyle Smith that if he answered the question satisfactorily he would be granted a certificate which would prevent anything he said in evidence being used against him in any other prosecution except for perjury.
So Mr Smith said he'd obtained legal advice. I think you might have made - it might have been quite obvious to you that he came to court with a view to seeking and obtaining such a certificate from the trial judge before speaking any further. Now, it was his right to do so. And quite obviously, members of the jury, that again is something that is quite proper.
Because if any of you, for example, were to read in the paper that a man was standing trial for something and you thought, 'Hang on a tick, that wasn't them. That's me.' And you wanted to come to court and give evidence ensuring that the wrong person was not convicted then of course you should be able to do so. That's why we have that certificate to prevent people from being wrongly convicted.
But is that what's happened here? You know, a member of the public stepping forward and saying, 'Hang on a tick, you haven't got Andre. It was me.' That is not just some random member of the public, members of the jury. This is the accused's own brother.
You might well think that what he's done today is abuse the process that is designed to stop innocent people being convicted. He's abused it to prevent a guilty man being convicted. I called it a ploy. Mr Smith claimed not to know what the word, 'Ploy,' meant. But I suggest to you you can all recognise a ploy when you see one.
And obviously you might think it's easier to make a false confession to committing a crime if you can never be held to account in a criminal prosecution for what you said. That's the position Kyle Smith was in. But you don't just have that. You don't just have the fact that effectively you've got a kind of get out of gaol card for whatever is said in court.
You also have the fact that his evidence contradicted wholesale what he'd said to the police. Now, I'm not suggesting that Kyle Smith if he had genuinely struck this final punch should have confessed to the police because of course nobody has to confess to the police.
It's probably one thing you know about the Criminal Justice System is that everyone has a right to remain silent. And Mr Kyle Smith told you he knew about that right. He knew he didn't have to answer police questions. He admitted that there were a number of occasions in his interview with the police when he didn't want to answer a question and he said the words, 'No comment.'
He was just exercising his legal rights. So I don't quibble with that. I don't suggest that he is a moral giant who ought to have owned up to what he did at the outset. Look, people are human and everyone has an instinct of self‑preservation.
They don't want to incriminate themselves. Mr Kyle Smith did not want to incriminate himself in court, that's why he asked for the certificate from the judge and he didn't want to incriminate himself with the police obviously as well, understandable so far.
But he didn't just answer, 'No comment,' to the police questions, he gave very different evidence.
…
Kyle Smith told you that his answers to the police were untrue because he was deciding what he wanted to say. Wasn't he deciding what he wanted to say in court, too? I mean, he took an oath, for sure. But he got that certificate from the judge.
He went further in this police interview. And again, this evidence differed significantly, from what he said to you in court.
…
The State's submission to you is that this is a - this is a person whose evidence in court is implausible but whose statements to the police are perfectly plausible (ts 789 - 792).
Ground 2: the trial judge's summing up
During his summing up, the trial judge gave the jury these directions in relation to the certificate that his Honour had granted Kyle Smith pursuant to s 11 of the Evidence Act:
You'll recall that Kyle Smith, in the course of his evidence, almost at the very beginning of his evidence, declined to answer a question on the grounds that the answer to the question might incriminate him. You'll also remember that I indicated to him that if he answered his questions in a satisfactory manner, that I would issue him a certificate.
I was satisfied, in the circumstances, that it was expedient for the ends of justice, that he be compelled to answer the questions asked of him and I did, in fact, direct him that he must answer the questions that were asked of him.
At the conclusion of his evidence, in other words after all of his evidence had been completed, his examination in chief, his cross‑examination and his re‑examination, I granted him a certificate, pursuant to the provisions of our Western Australian Evidence Act, because I was satisfied that the evidence was required for the ends of justice, and was given to my satisfaction.
The granting of the certificate, members of the jury, is not a finding, therefore, it's not a conclusion by me, as to the witness's credit or truthfulness. That remains a question, as always in this case, for you to determine, as you must do with every witness in this case.
The only protection given to [Kyle] Smith by the certificate is that his answers to the questions are not admissible in evidence in criminal proceedings against him, other than on a prosecution for perjury, in giving his evidence before you, the members of the jury.
He could be prosecuted for the offence of causing grievous bodily harm but if he were so prosecuted, because of the certificate I've issued, his evidence in this trial could not be used against him as evidence in the prosecution (ts 972).
After his Honour gave the jury those directions, the appellant's very experienced defence counsel did not request his Honour to give the jury a redirection or a further direction about the certificate.
Further, defence counsel did not request his Honour to give the jury a particular direction about the prosecutor's assertions in his cross‑examination and his closing address as to Kyle Smith's evidence and the certificate.
Ground 2: counsel for the appellant's submissions
Counsel for the appellant submitted that it was inappropriate for the prosecutor to assert that the fact that Kyle Smith had sought and had been granted a s 11 certificate was a factor relevant to Kyle Smith's credibility.
Counsel referred to this question which the prosecutor asked of Kyle Smith in cross‑examination:
And you're saying it in court now because you can't be held answerable for what … you're confessing to doing? (ts 675).
Counsel also referred to the following comments made by the prosecutor in his closing address:
(a)'The admission was made without any consequences for the person making it' (ts 789).
(b)'You might well think that what he's done today is abuse the process that is designed to stop innocent people being convicted' (ts 790).
(c)'You might think it's easier to make a false confession to committing a crime if you can never be held to account in a criminal prosecution for what you said' (ts 790).
(d)'… [E]ffectively you've got a kind of get out of gaol card for whatever is said in court' (ts 790).
It was submitted that the prosecutor's question and comments could have led the jury into error. First, the jury could have been led to infer that it was relevant to their assessment of Kyle Smith's credibility that he had asked for and been granted the certificate. Secondly, the jury could have been led to believe that the granting of the certificate meant that Kyle Smith could tell lies without any consequence.
Counsel argued that the State relied inappropriately upon the seeking and the granting of the s 11 certificate to discredit Kyle Smith's evidence. In the circumstances, the trial judge was bound to correct the assertions made by the prosecutor. His Honour's failure to correct those assertions occasioned a miscarriage of justice.
Ground 2: counsel for the State's submissions
Counsel for the State submitted that, when the prosecutor's comments and submissions are considered in context and having regard to the trial judge's directions, there is no reasonable prospect that the jury could have been misled into thinking that the s 11 certificate was relevant to their assessment of Kyle Smith's credibility or that the certificate enabled him to tell lies under oath with impunity.
Counsel referred to Markovina v The Queen [No 2][12] and Hugo v The Queen[13] and contended that those cases are authority for the proposition that the fact that a witness gives evidence under the protection of a s 11 certificate is potentially relevant to the credibility of the witness.
[12] Markovina v The Queen [No 2] (1997) 19 WAR 119.
[13] Hugo v The Queen [2000] WASCA 199; (2000) 113 A Crim R 484.
Counsel also referred to Trudgian v The State of Western Australia[14] and contended that it was not held in that case that the granting of a s 11 certificate is irrelevant to the assessment of the credibility of the witness who gives evidence under its protection.
[14] Trudgian v The State of Western Australia [2006] WASCA 271; (2006) 33 WAR 163.
It was submitted that, in the present case, his Honour fully informed the jury of the legal effect of the s 11 certificate.
Ground 2: its merits
At common law, the privilege against self-incrimination entitles a natural person to refuse to answer any question and to refuse to produce any document if the answer or the document would expose, or would have a tendency to expose, him or her, either directly or indirectly, to the risk of criminal conviction. See Blunt v Park Lane Hotel Ltd;[15] Accident Insurance Mutual Holdings Ltd v McFadden;[16] Reid v Howard.[17]
[15] Blunt v Park Lane Hotel Ltd [1942] 2 KB 253, 257 (Goddard LJ).
[16] Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, 420 ‑ 421 (Kirby P).
[17] Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 6 ‑ 7 (Deane J).
The privilege against self-incrimination is a fundamental principle of the common law, and not merely a rule of evidence. It extends beyond curial and quasi-judicial proceedings. See Sorby v The Commonwealth of Australia;[18] Pyneboard Pty Ltd v Trade Practices Commission.[19]
[18] Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281, 309 (Mason, Wilson & Dawson JJ).
[19] Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 340 ‑ 341 (Mason ACJ, Wilson & Dawson JJ).
In Sorby (294), Gibbs CJ said:
It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.
At common law, the court before whom the privilege against self‑incrimination is claimed must be satisfied that the privilege has been invoked in good faith. If the court is not satisfied on that point, the witness will be compelled to answer the relevant question or to produce the relevant document, as the case may be. See Brebner v Perry;[20] Jackson v Gamble.[21]
[20] Brebner v Perry [1961] SASR 177, 182 (Mayo J).
[21] Jackson v Gamble [1983] 1 VR 552, 556 (Young CJ).
The privilege against self-incrimination may be abrogated or modified by statute. See Reid (12); Sorby (298, 308); Re Gordon.[22] Parliament's intention to abrogate or modify the privilege must, however, be clearly manifested by unmistakable and unambiguous language. See Coco v The Queen;[23] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission.[24]
[22] Re Gordon (1988) 18 FCR 366, 373 (Pincus J).
[23] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron & McHugh JJ).
[24] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [13] (Gleeson CJ, Gaudron, Gummow & Hayne JJ), [43] (McHugh J).
Section 11 of the Evidence Act provides, relevantly:
(1)Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.
(2)Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction.
(2a)Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.
Section 11 is concerned with the privilege against self‑incrimination and its abrogation.
By s 11(1), relevantly and in effect, if in any proceeding any person called as a witness declines to answer any question on the ground that his or her answer will criminate or tend to criminate him or her, the judge may, if it appears to the judge expedient for the ends of justice that the person should be compelled to answer the question, tell the person that if he or she answers the question, and other questions that may be put to him or her, in a satisfactory manner, the judge will grant him or her the certificate mentioned in s 11(2).
By s 11(2), relevantly and in effect, if it appears to the judge expedient for the ends of justice that the person should be compelled to answer the question, and the judge tells the person that, if the person answers the question, and other questions that may be put to him or her, in a satisfactory manner, the judge will grant him or her the certificate mentioned in s 11(2), the person is not entitled to claim the privilege against self‑incrimination. If the person gives his or her evidence to the satisfaction of the judge, the judge must give the person a certificate to the effect that he or she was called as a witness in the proceeding, his or her evidence was required for the ends of justice, and his or her evidence was given to the judge's satisfaction.
By s 11(2a), relevantly and in effect, where in a proceeding a person is given a certificate under s 11(2) in respect of any evidence, a statement made by the person, as part of that evidence, in answer to a question is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.
Section 11 has been considered in a number of cases. See, in particular, Woods v Smith;[25] Attorney‑General (WA) v Cockram;[26] Markovina; Hugo; and Trudgian. Various propositions in relation to the proper construction and application of s 11 are apparent from those decisions, bearing in mind that s 11 (and related provisions) were amended in 1990 by the Evidence Amendment Act 1990 (WA).
[25] Woods v Smith [1976] WAR 13.
[26] Attorney‑General (WA) v Cockram (1990) 2 WAR 477.
First, s 11 is available both to a defence witness and to a prosecution witness. See Woods (15, 19 ‑ 20, 22).
Secondly, when a witness declines to answer any question on the ground that the answer will criminate or tend to criminate him or her, the judge must be satisfied that there is a reasonable ground for the witness to claim privilege against self-incrimination. A mere statement by the witness that he or she believes the answer will criminate or tend to criminate him or her is insufficient. The judge must be satisfied, from the circumstances before the court and the nature of the evidence which the witness is called upon to give, that there is a reasonable ground to apprehend that the answer will criminate or tend to criminate the witness. See Woods (16, 19, 22); Markovina (123).
Thirdly, if the judge is satisfied that there is a reasonable ground for the witness to claim privilege against self-incrimination, the judge must then consider whether it is 'expedient for the ends of justice', within s 11(1), that the witness be compelled to answer the question. No general rules by which the requisite expediency will be apparent can be laid down in advance. See Woods (19); Markovina (123 ‑ 126).
Fourthly, when a defence witness seeks to invoke s 11 in a criminal trial, an important consideration is the possibility of fraud by the witness or collusion between the accused and the witness in relation to the evidence that the witness will give. If there is material before the judge that establishes fraud or collusion, the judge should not tell the witness that the judge will grant the witness a certificate under s 11 and no certificate should be granted. See Woods (16, 23); Markovina (125).
Fifthly, the phrase 'expedient for the ends of justice', within s 11(1), is very broad. The ends of justice are served not only by the conviction of an accused who is guilty, but also by ensuring that an accused whose guilt is not proved beyond reasonable doubt is acquitted. Accordingly, 'where a witness for the defence reasonably claims privilege, and it appears that his evidence, if believed, may tend to exculpate the defendant, then in the absence of any suggested fraud or collusion, he should normally be compelled to testify and be offered a certificate for that purpose'. See Woods (16, Jackson CJ). See also Woods (19 ‑ 20).
Sixthly, when a s 11 certificate is granted to a witness in a criminal trial before a judge and jury, the certificate is ordinarily given in the presence of the jury. See Markovina (126); Hugo [136]; Trudgian [25].
Seventhly, when a s 11 certificate is granted to a witness in a criminal trial before a judge and jury, the practice of granting the certificate in the presence of the jury requires the trial judge to take care, either when the certificate is granted or in his or her summing up to the jury or both, to explain to the jury 'the limited nature of the satisfaction which is preconditional to the granting of such a certificate, namely that it is not a finding by the trial judge of credit or truthfulness on the part of the witness, and that that question is for the jury to determine as they do with any witness'. See Hugo [136] (Sheller AJ; Pidgeon & Anderson JJ agreeing). Further, when a s 11 certificate is granted to a witness in a criminal trial before a judge and jury, the trial judge should explain to the jury why the witness was compelled to give evidence, why the certificate was granted 'and the consequences of this in terms of the unreliability of the evidence and the immateriality of the fact that the trial judge is satisfied in accordance with s 11'. See Hugo [139]. The judge's preconditional finding to the grant of the certificate, namely that the witness has given his or her evidence 'in a satisfactory manner', within s 11(1), or 'to the satisfaction of the judge', within s 11(2), does not indicate a finding by the judge as to the credibility or truthfulness of the witness; that is, the grant of the certificate has no bearing on the jury's assessment of the credit or truthfulness of the witness. See Trudgian [26] ‑ [28].
Eighthly, a witness to whom a s 11 certificate is granted can be prosecuted for perjury in respect of the evidence he or she gives. Also, notwithstanding the grant of the certificate, the witness can be prosecuted in respect of any offence admitted during his or her evidence. The sole effect of the certificate is that the evidence given by the witness will not be admissible in any criminal proceedings against the witness other than for perjury.
In Trudgian, the appellant was convicted after trial of three counts of possession of methylamphetamine with intent to sell or supply. At the trial, Eylward was called as a defence witness. Eylward refused to answer questions about the drugs on the basis that his answers would criminate or tend to criminate him. The trial judge told Eylward, in the jury's presence, that he was required to answer the questions put to him and that if he answered the questions in a satisfactory manner the judge would grant him a s 11 certificate 'which will protect you from prosecution upon what you say' [11]. Eylward then gave evidence that the drugs belonged to him. The trial judge did not grant or refuse a certificate in the jury's presence. At the conclusion of Eylward's evidence, his Honour merely said, in the jury's presence, that it was unnecessary for him to deal with that issue 'right now' and that it was not for him to express any view about it at that stage [13]. The prosecutor submitted to the jury, in his closing address, that Eylward had given evidence under cover of an immunity from prosecution and that what Eylward had said was a concoction to facilitate the appellant's acquittal.
The appellant in Trudgian appealed against conviction on various grounds including, relevantly, that the trial judge should have granted or refused a s 11 certificate in the jury's presence and that the judge should also have explained to the jury the effect of granting a certificate. This court allowed the appeal and ordered a new trial. Steytler P (Roberts-Smith and McLure JJA agreeing) held that the trial judge's failure to correct 'what had been said by the prosecutor (which suggested, also, that a certificate had been, or would inevitably be, given) would have left the jury under the impression that Mr Eylward could lie with impunity, if he chose to do so, when in reality he was able to be prosecuted for perjury if it could be proved that he had in fact lied and, indeed, he could be prosecuted for his possession of the drugs, if that could be proved without relying upon the evidence given by him in these proceedings' [29]. Steytler P added that it was 'undeniable that this misapprehension may have had a significant effect on the jury's assessment of the reliability of Mr Eylward's evidence' [29].
There is a division of opinion in the case law as to whether any inference may be drawn from the refusal of a witness to answer a question on the ground that the answer will criminate or tend to criminate him or her.
Numerous decisions support the view that no inference may be drawn from the refusal of the witness to answer a question on the ground of privilege against self-incrimination. See, for example, Dolan v Australian & Overseas Telecommunications Corporation;[27] Pappas v New World Oil Developments Pty Ltd;[28] C v T;[29] R v Hood;[30] Australian Securities & Investments Commission v ABC Fund Managers Ltd;[31] R v Roberts.[32] See also Heydon JD, Cross on Evidence (12th Aust ed 2020), [25040].
[27] Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206, 212 ‑ 216 (Spender J).
[28] Pappas v New World Oil Developments Pty Ltd (1993) 43 FCR 594, 595 (Lee J).
[29] C v T (1995) 58 FCR 1, 16 ‑ 17 (Burchett J).
[30] R v Hood (1997) 91 A Crim R 526, 528 (Hunt CJ at CL).
[31] Australian Securities & Investments Commission v ABC Fund Managers Ltd [2001] VSC 383; (2001) 39 ACSR 443 [109] ‑ [112] (Warren J).
[32] R v Roberts [2004] VSCA 1; (2004) 9 VR 295 [83] (Batt JA; Buchanan & Chernov JJA agreeing).
In Thompson v Bella-Lewis,[33] Davies JA, after noting the difference of opinion among judges and jurists as to whether any inference may be drawn from the refusal of a witness to answer a question on the ground of privilege against self-incrimination, said:
The view that [no inference] may be drawn has sometimes been expressed without any reason being given for it (See for example Ex parte Symes (1805) 11 Ves. Jr. 521 at 523; 32 ER 1191; R v Watson (1817) 2 Stark. 116 at 158; 171 ER 591 at 606 per Holroyd J; Lamb v Munster (1882) 10 QBD 110 at 114). In other cases it has been said, in effect, that to draw any such inference would be to deny the protection which the privilege is designed to give without saying what that protection is or how it would thereby be denied (Lloyd v Passingham (1809) 16 Ves 59 at 64; 33 ER 906 at 908; Rose v Blakemore (1826) Ry & Mood 382 at 384; 171 ER 1057; Wentworth v Lloyd (1864) 10 HLC 589 at 590, 592; 11 ER 1154, 1155; R v Petrie (1946) 47 SR (NSW) 20 at 29; Dolan v AOTC (1993) 42 FCR 206 at 214; Pappas v New World Oil Developments (1993) 43 FCR 594 at 595; Cross on Evidence, Australian ed, par 25040; Phipson on Evidence (14th ed) at par 20‑05). In others again it is said, in effect, that the purpose of the rule is not just to shield the guilty but also to protect the innocent; and that that protection would be lost if a refusal to answer were to be taken as an admission against interest (Adams v Lloyd (1858) 3 H & N 351 at 363; 157 ER 506 at 510; Lamb v Munster (1882) 10 QBD 110 at 114).
It is plain that no inference drawn by the jury could turn the refusal to answer into an admission and the witness would be protected from later prosecution whatever inference the jury may draw. That protection is surely the purpose of the rule (See the note to Rose v Blakemore at 384 ‑ 385; 1058). The better view in my opinion therefore is that, in such a case, the jury are entitled to draw whatever inference is reasonably open (R v Watson at 153; 605 per Bayley J; Boyle v Wiseman (1855) 10 Ex 647 at 651; 156 ER 598 at 600 per Baron Parke, Bardon Alderson; Bartlett v Lewis (1862) 12 CB (NS) 249 at 257; 142 ER 1139 at 1142; Stone & Wells at 571 ‑ 572; Wilkinson, The Scottish Law of Evidence, (1986) at 90).
[33] Thompson v Bella-Lewis [1997] 1 Qd R 429, 436 ‑ 437.
However, in Thompson, McPherson JA's view on the point was different from that of Davies JA. McPherson JA said that no inference could be drawn from the refusal of the witness to answer a question on the ground of privilege against self-incrimination (454 ‑ 455).
Fitzgerald P, who was the other member of the court in Thompson, found it unnecessary to choose between the competing views of Davies JA and McPherson JA. However, his Honour did 'question whether some of the authorities which are against drawing an inference from the refusal of a witness to answer a question on the ground of privilege against self-incrimination can be fully applied to circumstances … where the evidence in relation to which privilege was claimed concerned statements made on an earlier occasion and the witness' asserted foundation for the claim to privilege was that the evidence declined to be given might tend to show that the earlier statements were incorrect' (434). His Honour added that '[even] if the privilege claim could not be converted into an admission of the falsity of the earlier statements, it is not obvious why it could not detract from whatever probative force they might otherwise have' (434).
In Markovina, Malcolm CJ, Pidgeon and Walsh JJ observed that the reason why a s 11 certificate granted to a witness in a criminal trial before a judge and jury is ordinarily given in the presence of the jury is that the granting of the certificate puts the witness in a 'very special category' (126). When a certificate is granted to a prosecution witness, that is 'a circumstance which enables the defendant to say that the witness is unreliable and, in this sense, is an advantage to the defendant' (126). Their Honours did not cite any authority for that proposition. Also, their Honours did not refer to the division of opinion in the case law as to whether any inference may be drawn from the refusal of a witness to answer a question on the ground that the answer will criminate or tend to criminate him or her.
The observations of Malcolm CJ, Pidgeon and Walsh JJ in Markovina, to which we referred at [102] above, were noted, without express approval or express disapproval, in Hugo [130] and Trudgian [25].
In Hugo, the appellants invited the court to reconsider whether the ordinary practice of granting a s 11 certificate in the presence of the jury was desirable. The court refused because Hugo was not an appropriate case to question the established practice [131].
By contrast, in Roberts [80] ‑ [84], Batt JA (Buchanan and Chernov JJA agreeing) held (without citing Markovina) that:
(a)since the refusal of a witness to answer a question on the ground of privilege against self-incrimination could not affect the credit of the witness; and
(b)since the genuineness of the refusal of a witness to answer a question was for the judge alone,
the taking of the objection to answer before the jury would neither provide the jury with any evidential material nor serve any other useful purpose; indeed, it might tend to distract the jury from their task.
In the present case, it is unnecessary to express an opinion on the issue of whether any inference may be drawn from the refusal of a witness to answer a question on the ground of privilege against self-incrimination. Also, it is unnecessary, with respect, to consider the correctness of the observations in Markovina to the effect that the granting of a certificate under s 11 puts the witness in a 'very special category' and, when a certificate is granted to a prosecution witness, that is 'a circumstance which enables the defendant to say that the witness is unreliable and, in this sense, is an advantage to the defendant' (126).
In our opinion, where:
(a)a defence witness refuses to answer a question on the ground of privilege against self-incrimination;
(b)the basis for the witness' refusal to answer and invocation of the privilege is the witness' assertion that he or she (and not the accused) committed the offence in respect of which the accused is being tried;
(c)the trial judge is satisfied that there is a reasonable ground for the witness to claim the privilege;
(d)the judge considers that it is expedient for the ends of justice that the witness be compelled to answer the question; and
(e)the judge tells the witness that, if the witness answers the question, and other questions that may be put to him or her, in a satisfactory manner, the judge will grant him or her the certificate mentioned in s 11(2),
it is open to the prosecutor in cross-examination (if there is a proper basis in the evidence for the imputation) to put to the witness that the witness' assertion that he or she (and not the accused) committed the offence in respect of which the accused is being tried is fraudulent and, further or alternatively, is the product of collusion between the witness and the accused.
A line of cross-examination to that effect is proper. It advances the administration of criminal justice by exploring the accuracy and reliability of the witness' assertion that he or she (and not the accused) committed the offence and by ascertaining whether the evidence adduced at the trial (including the witness' evidence) proves beyond reasonable doubt that the accused committed the charged offence. The object of the prosecutor is to impugn the truthfulness of the witness' assertion. The fact that the witness has refused to answer a question and has invoked the privilege against self‑incrimination does not preclude the prosecutor from attacking the witness' credit in relation to the answer which the witness has given to the question or from putting to the witness that the witness did not genuinely believe that his or her answers to questions would or may criminate or tend to criminate him or her and that the witness' assertion in evidence that he or she had that belief was false. The trial judge's satisfaction that there is a reasonable ground for the witness to claim the privilege, and the judge's conclusion that it is expedient for the ends of justice that the witness be compelled to answer the question, do not immunise the witness from cross‑examination as to credit in relation to the accuracy or reliability of the answer. The judge's satisfaction that there is a reasonable ground for the witness to claim the privilege does not preclude the prosecutor from challenging the credit or truthfulness of the witness.
The line of cross-examination to which we have referred does not seek to impugn the witness' credit on the basis of the witness' refusal to answer the question on the ground that the answer will criminate or tend to criminate him or her. Also, the cross-examination does not seek to impugn the credibility of the witness on the basis of the witness' hope or expectation that the judge will grant him or her a s 11 certificate.
In the present case, the prosecutor put to Kyle Smith, in effect, that Kyle Smith was asserting in court that he (and not the appellant) had committed the offence because Kyle Smith could not be held 'answerable for what [Kyle Smith was] confessing to doing'. See [68] above. That proposition elicited a response from Kyle Smith to the effect that he had been told that he would not 'get any form of immunity or anything until after [he had] said what [he had] said' (ts 675 ‑ 676). Kyle Smith added that '[i]f the judge believes me, then he grants me [the s 11 certificate]' (ts 676). Kyle Smith repeated in re-examination his understanding of the position in relation to the s 11 certificate (ts 678 ‑ 681).
During his closing address, the prosecutor commented that Kyle Smith had asserted in evidence that he (and not the appellant) had committed the offence and that Kyle Smith's admission was 'made without any consequences for [Kyle Smith]'. See [69(a)] above. The prosecutor then elaborated that the admission was made without any consequences for Kyle Smith 'because [the jury] heard his Honour … say to Kyle Smith that if he answered the question satisfactorily [Kyle Smith] would be granted a certificate which would prevent anything he said in evidence being used against him in any other prosecution except for perjury' (ts 789). The prosecutor added that 'it might have been quite obvious to [the jury] that [Kyle Smith] came to court with a view to seeking and obtaining such a certificate from the trial judge before speaking any further' and that 'it was [Kyle Smith's] right to do so' (ts 789).
During his closing address, the prosecutor commented that the jury 'might well think that what [Kyle Smith's] done today is abuse the process that is designed to stop innocent people being convicted'. See [69(b)] above. The prosecutor then explained that Kyle Smith had 'abused [the process] to prevent a guilty man being convicted'. The prosecutor added, in effect, that Kyle Smith had engaged in a 'ploy' by making a false confession for the purpose of exonerating the appellant in the knowledge that his confession could not be used against him (ts 790).
During his closing address, the prosecutor commented that the jury might think that it was 'easier to make a false confession to committing a crime if you can never be held to account in a criminal prosecution for what you said'. See [69(c)] above. The prosecutor then said that was 'the position Kyle Smith was in' (ts 790). Next, the prosecutor commented that the jury '[did not] just have the fact that effectively [Kyle Smith had] got a kind of get out of gaol card for whatever [he] said in court'. See [69(d)] above. The prosecutor explained that the jury also had 'the fact that [Kyle Smith's] evidence [in court] contradicted wholesale what [Kyle Smith had] said to the police' (ts 790).
In the present case, we are satisfied, for the following reasons, that the prosecutor's impugned proposition, in cross-examination, and the prosecutor's impugned comments, in his closing address, did not occasion a miscarriage of justice by impermissibly seeking to discredit Kyle Smith on the basis that Kyle Smith had received a s 11 certificate from the trial judge.
First, the prosecutor was entitled to cross-examine Kyle Smith by asking questions or putting propositions to the effect that:
(a)Kyle Smith had not committed the offence;
(b)Kyle Smith knew that the appellant had committed the offence;
(c)Kyle Smith's assertion that he had committed the offence was fraudulent; and
(d)Kyle Smith did not genuinely believe that his answers to questions would or may criminate or tend to criminate him and his assertion in evidence that he had that belief was false.
Secondly, the prosecutor was entitled to submit in his closing address that:
(a)Kyle Smith had not committed the offence;
(b)Kyle Smith knew that the appellant had committed the offence;
(c)Kyle Smith's assertion that he had committed the offence was fraudulent; and
(d)Kyle Smith did not genuinely believe that his answers to questions would or may criminate or tend to criminate him and his assertion in evidence that he had that belief was false,
and, in the circumstances, that Kyle Smith was an untruthful and unreliable witness and his evidence as to the facts in issue at the trial should be rejected.
Thirdly, the prosecutor's proposition to Kyle Smith to the effect that Kyle Smith was asserting in court that he (and not the appellant) had committed the offence because Kyle Smith could not be held 'answerable for what [Kyle Smith was] confessing to doing' (see [110] above) involved, in substance, putting to Kyle Smith that he had confessed in court that he (and not the appellant) had committed the offence because Kyle Smith believed that his confession could not be used against him if he was subsequently charged with the offence. The prosecutor's proposition was concerned with Kyle Smith's alleged motive and strategy for making in court a confession which, on the State's case, was fraudulent. The prosecutor's proposition did not expressly or impliedly attack the credit of Kyle Smith on the ground that he had claimed privilege against self-incrimination or on the ground that he hoped or expected the trial judge would grant him a s 11 certificate.
Fourthly, it is apparent on a fair reading in context of the whole of the relevant passage, that the prosecutor's comment in his closing address to the effect that Kyle Smith's admission in court that he (and not the appellant) had committed the offence was 'made without any consequences for [Kyle Smith]' (see [111] above) involved, in substance, a submission to the effect that:
(a)Kyle Smith had made the admission without any consequences for him because if Kyle Smith answered questions to the satisfaction of the trial judge then his Honour would grant Kyle Smith a s 11 certificate; and
(b)the certificate would prevent anything Kyle Smith had said in evidence from being used against him in any other prosecution except for perjury.
The prosecutor's comment related to the legal effect of a s 11 certificate, namely that the evidence given by the witness will not be admissible in any criminal proceedings against the witness other than for perjury. The comment did not, when read in the relevant context, misstate the legal effect of the certificate. The comment was concerned with Kyle Smith's alleged motive and strategy for making in court a confession which, on the State's case, was fraudulent. The prosecutor's comment did not expressly or impliedly attack the credit of Kyle Smith on the ground that he had claimed privilege against self-incrimination or on the ground that he hoped or expected the trial judge would grant him a s 11 certificate or on the ground that his Honour had granted him the certificate.
Fifthly, the prosecutor's comment in his closing address that the jury 'might well think that what [Kyle Smith's] done today is abuse the process that is designed to stop innocent people being convicted' (see [112] above) involved, in substance, a submission to the effect that Kyle Smith's assertion that he (and not the appellant) had committed the offence was fraudulent; that Kyle Smith did not genuinely believe that his answers to questions would or may criminate or tend to criminate him; and that Kyle Smith's assertion in evidence that he had that belief was false. The comment was concerned with whether Kyle Smith's confession in court was truthful and with whether his professed belief that his answers would or may criminate or tend to criminate him was honest. The prosecutor's comment did not expressly or impliedly attack the credit of Kyle Smith on the ground that he had claimed privilege against self-incrimination or on the ground that he hoped or expected the trial judge would grant him a s 11 certificate or on the ground that his Honour had granted him the certificate.
Sixthly, the prosecutor's comments in his closing address that:
(a)the jury might think that it was 'easier to make a false confession to committing a crime if you can never be held to account in a criminal prosecution for what you said';
(b)that was 'the position Kyle Smith was in'; and
(c)the jury '[did not] just have the fact that effectively [Kyle Smith had] got a kind of get out of gaol card for whatever [he] said in court', but also had 'the fact that [Kyle Smith's] evidence [in court] contradicted wholesale what [Kyle Smith had] said to the police' (see [113] above),
must be read in the context of the whole of the relevant passages in the prosecutor's closing address and the trial judge's relevant directions to the jury.
When the prosecutor's comments are read in that context (in particular, in the context of the prosecutor's comment referred to at [111] above and the trial judge's directions referred to at [56] ‑ [58] and [62] above) it would have been readily apparent to the jury that the prosecutor's comments involved, in substance, the assertion that the evidence given in court by Kyle Smith would not be admissible in any criminal proceedings against him other than for perjury. The comments, when read in the relevant context, did not misstate the legal effect of a s 11 certificate. The comments were concerned with Kyle Smith's alleged motive and strategy for making in court a confession which, on the State's case, was fraudulent. The prosecutor's comments did not expressly or impliedly attack the credit of Kyle Smith on the ground that he had claimed privilege against self-incrimination or on the ground that he hoped or expected the judge would grant him a s 11 certificate or on the ground that his Honour had granted the certificate.
Seventhly, in any event, even if the prosecutor's impugned proposition, in cross-examination, or any of the prosecutor's impugned comments, in his closing address, did misstate the legal effect a s 11 certificate, the trial judge's directions in his summing up avoided any risk that the prosecutor's misstatement may have rendered the appellant's trial unfair or otherwise may have occasioned a miscarriage of justice. See his Honour's directions in his summing up referred to at [64] above. See also his Honour's directions in the course of the evidence referred to at [57] and [62] above.
Eighthly, the appellant's very experienced criminal defence lawyer did not request the trial judge to give the jury any direction in relation to the prosecutor's impugned proposition or the prosecutor's impugned comments.
Ground 2 fails.
Conclusion
We would refuse leave to appeal on ground 1 and grant leave to appeal on ground 2. Neither of the grounds has been made out. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
5 FEBRUARY 2021
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