Waldron v R

1. [1]

   BUTTON J: The judgment of Hamill J reflects my own reasons for joining in the orders of 2 June 2023.

2. [2]

   HAMILL J: At the conclusion of the hearing of this appeal last Friday 2 June 2023, the Court indicated it was unanimous, first, that the grounds of appeal should be upheld and, secondly, that it could not reach a conclusion that no substantial miscarriage of justice actually occurred. The following orders were made:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal upheld.

   3. (3)

      Quash the applicant’s conviction.

   4. (4)

      Order that there be a new trial.

   5. (5)

      List the matter for call-over on 8 June 2023 at the District Court sitting in Newcastle.

3. [3]

   Later in the day, the Court added the following order in chambers with the consent of both parties:

4. [4]

   These are my reasons for joining in those orders.

An overview of the appeal and course of the trial

1. [5]

   Lauren Louise Waldron (to whom I will refer to as the “applicant” or “Ms Waldron”) sought leave to appeal against her conviction in relation to one count of wounding with intent to cause grievous bodily harm. Leave was required to agitate these grounds because the issues were not raised at her trial. [1]

2. [6]

   Ms Waldron was arraigned on Monday 17 January 2022 in the District Court sitting in Newcastle before her Honour Judge English and a jury panel. There were three counts on the indictment. The second and third counts were cast as alternatives. Count 1 alleged that on 19 July 2020 at Wallsend the applicant wounded Siesi Taufaao (“the complainant” or “Mr Taufaao”) with intent to cause grievous bodily harm. Count 2 was an alternative alleging wounding with intent to cause actual bodily harm and count 3 was a further alternative alleging assault occasioning actual bodily harm.

3. [7]

   Before the trial commenced, one of the proposed witnesses (Travis Mordaunt) gave evidence on the voir dire or “Basha Inquiry”. [2] Unrelatedly, the trial Judge resolved an objection by the Prosecutor to tendency evidence that the applicant sought to adduce. Her Honour ruled that the tendency evidence was admissible, finding that it had significant probative value to the issues expected to be relevant at the trial. The directions provided to the jury as to the use of that evidence forms the basis of both grounds of appeal.

4. [8]

   The trial proper commenced on Tuesday 19 January 2022 and the prosecution closed its case on Friday 21 January 2022. The applicant tendered agreed facts relating to the tendency evidence (Ex 3). She otherwise relied on evidence adduced in the prosecution case, including things she told police on 19 July 2020 when she was arrested at her home and her responses were recorded by a police officer’s body worn video camera (Ex F), and during an electronically recorded interview (“ERISP”) conducted later that day (Ex H). Counsel addressed the jury on the Friday afternoon and Judge English summed up on Monday 24 January 2022. The jury retired to consider its verdict at 11:11am on that date and returned a verdict of guilty to count 1 at 12:04pm the following day. On 16 March 2022 Judge English sentenced the applicant to imprisonment for 3½ years with a non-parole period of 2 years, commencing on 14 March 2022.

5. [9]

   The respondent conceded that the jury was misdirected but urged the Court to apply the proviso to s 6(1) of the Criminal Appeal Act. In other words, the respondent submitted that no substantial miscarriage of justice actually occurred in spite of the error in the directions and that the appeal should be dismissed.

The prosecution case at trial

1. [10]

   The prosecution case was that the applicant and Mr Taufaao were in a relationship in late 2019 and early 2020. They lived together in a house at Wallsend. After the relationship ended, they both moved out of the premises. The applicant moved back into the house a few months later. Mr Taufaao said that he did not know she had moved back to the house and that there was no contact between the couple for some time leading up to the incident that gave rise to the charges.

2. [11]

   On 19 July 2020, the complainant returned to the premises to collect mail that he believed had been sent to that address. He was accompanied by a friend, Emma Forbes-Jordan. The complainant parked the car and Ms Forbes-Jordan walked towards the premises.

3. [12]

   The prosecution case was that Travis Mordaunt, a friend of the applicant’s, approached Ms Forbes-Jordan and began yelling. He assaulted her and threw her to the ground. Mr Taufaao got out of the car and ran over to help Ms Forbes-Jordan get up. Mr Mordaunt and the complainant began fighting. The complainant turned around and the applicant stabbed him with a pair of scissors. The complainant said he was not aware that the applicant was present at the premises before he was stabbed. The prosecution case was that the stabbing was unprovoked, and that Mr Taufaao directed no violence or abuse towards the applicant before she stabbed him. On the prosecution case, which is to say Mr Taufaao’s version of events, the stabbing occurred just outside of a garage which adjoined the house. The scene is depicted in crime scene photographs. The complainant and Ms Forbes-Jordan returned to the car and drove away. He was treated in hospital for a “sucking chest wound” that penetrated the chest wall.

4. [13]

   Mr Taufaao gave evidence in accordance with that narrative. He said that Mr Mordaunt yelled at Ms Forbes-Jordan as she approached the house and then threw her to the ground. Mr Taufaao went over to help Ms Forbes-Jordan get up off the ground. He turned to go back to the car when the applicant lunged at him and, he thought initially, hit him. He was not aware she was present and did not realise he had been stabbed at first. He gave evidence that the applicant said “No, get him out of here before I fucking kill him”. He said he did not lay a finger on the applicant that day and did not hurt her.

5. [14]

   A diagram drawn by the complainant became Ex C at the trial. He marked a spot, adjacent to the house and at the entrance to the garage, where he said the incident occurred. He also described this in his evidence. The location was in a space between the doorway into the garage and the house. The following exchange occurred when Mr Taufaao was cross-examined:

6. [15]

   He denied a series of propositions put to him by counsel then appearing for the applicant. This concerned his account of the incident itself and whether he entered the garage, and the applicant’s assertion that he had threatened her in text messages and in person:

7. [16]

   Mr Mordaunt gave evidence in the prosecution case. His evidence was unfavourable to the prosecution, and he was called in accordance with the Prosecutor’s duty to call relevant eyewitnesses. He said he was present on the day because he wanted to pick up some washing which had been done at the applicant’s house. He was carrying his washing to his car when he saw Ms Forbes-Jordan. The applicant was walking beside Mr Mordaunt and, without warning, Mr Taufaao hit her on the chin with his fist. He described the force of the blow as “pretty hard” and that it “[p]robably would have knocked most men – men down”. He said the applicant stumbled but he thought she kept her feet. Mr Mordaunt said that he and Mr Taufaao “started throwing punches, fighting”. He said that Ms Forbes-Jordan also punched him to the head a few times and he threw her to the ground. He said that the complainant went into the shed for a few seconds. When he emerged, Mr Mordaunt noticed some blood drops, but said the complainant was still “running his mouth” and smiling. He was asked whether he noticed injuries to the applicant after the incident. He initially said he could not recall seeing injuries but said in the next answer that “[f]rom memory” there was bruising and “probably a bit of swelling”.

8. [17]

   The Prosecutor was granted leave to cross-examine Mr Mordaunt. He agreed that he was “mates” with Ms Waldron and that he had hugged her when they met at Court earlier in the week (that evidence was subject to the pre-trial Basha inquiry). He denied speaking to the applicant about the case or the evidence. The Prosecutor put to him that he was trying to assist Ms Waldron in his evidence, and he said “I’m just saying what happened. I’m just saying facts.” He was asked if he was “exaggerating what occurred” and he said “[t]otally disagree. That’s what happened.” In cross-examination by counsel appearing for the applicant, Mr Mordaunt said he heard Mr Taufaao call the applicant “a slut” or something like that just before he hit her.

9. [18]

   Another witness, Chloe Schaufler, gave evidence on the voir dire (another Basha inquiry) and claimed she could not remember much because she was a drug addict at the time. Having heard that evidence, the parties agreed she should not give evidence before the jury.

10. [19]

    Emma Forbes-Jordan did not give evidence at the trial.

11. [20]

    Dr Singh, who treated Mr Taufaao when he was taken to hospital, gave evidence of the nature of the wound. Not much turned on the doctor’s evidence. It was consistent with any of the versions of the stabbing.

12. [21]

    Several police officers gave evidence of the investigation. Crime scene photographs were tendered (Ex B) and these showed, amongst other things, where drops of blood were found at the scene. The photographs also showed the inside of the garage and a table that, on the applicant’s account to police, she and the complainant fell onto at the time of the stabbing. Detective King gave evidence that he noticed Mr Mordaunt’s t-shirt had been ripped around the collar. Again, little turned on this; it was consistent with any of the competing versions of the events.

13. [22]

    Body worn footage was tendered (Ex A) which showed Mr Taufaao lying by the side of the road shortly (“about ten minutes”) after the stabbing. He appeared to be in a lot of pain. He was asked “where’s the bloke who stabbed you mate?” and he said he could not talk. There was also body worn footage (Ex E) depicting Ms Waldron’s arrest at her home. She came to the front door when police knocked, apparently dressed only in a towel, and asked if she could get dressed. Mr Mordaunt was present outside, and police asked about his torn shirt which can be seen in the video. He asserted that the complainant “just come up and king hit her", that he (Mr Mordaunt) then “had a crack with him” and that the pair “punched on”.

14. [23]

    More body worn video footage was tendered (Ex F) which recorded a conversation between the applicant and Acting Sergeant Smith inside the house as the applicant was getting dressed. The ERISP conducted at the police station was also tendered (Ex H).

The applicant’s case at trial

1. [24]

   The applicant did not give evidence at the trial. She relied on the evidence of Mr Mordaunt, the things she told police at her home and in the ERISP and the tendency evidence relating to the complainant. Her case was that she acted in self-defence or in defence of Mr Mordaunt. She admitted that she stabbed Mr Taufaao with a pair of scissors but said she did so “because I dead set, like, if I didn’t do that, I believed I would probably be dead.”

2. [25]

   She provided the following narrative of what happened on 19 July 2020:

3. [26]

   Later in the interview, she confirmed that the complainant entered the garage. She described the event again:

4. [27]

   She said she left the relationship because “he’s a psycho … [h]e’s just a psycho … he’s just not right in the head”. However, when asked directly, she denied that there were “domestic violence issues” but claimed that Mr Taufaao made threats to her since the relationship ended. This is the part of the interview where she made the accusation, which were denied by the complainant in cross-examination:

5. [28]

   The applicant had provided her version of what happened when police came to her home to arrest her. That was not a detailed account and was provided as the applicant was getting dressed before being escorted to the police station. The version she provided (as transcribed by the respondent in its submissions) included:

The tendency case

1. [29]

   A tendency notice served pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW) identified the tendencies of the complainant the applicant sought to establish:

2. [30]

   The notice identified a variety of evidentiary sources that were said to be capable of establishing these tendencies. The Prosecutor objected to the evidence, but Judge English accepted that the evidence had significant probative value and was admissible. Her Honour made the following observations about the evidence said to support the tendency:

3. [31]

   The parties reached an agreement as to the way the evidence could most conveniently be placed before the jury and Ex 3 was in the following terms:

The grounds of appeal and the impugned directions

1. [32]

   The applicant raised the following grounds of appeal:

2. [33]

   I have concluded that both conceded grounds should be upheld. To understand that conclusion, it is necessary to set out the directions provided to the jury concerning tendency reasoning and the drawing of inferences more generally. In fairness to the trial Judge, the direction upon which ground 2 was based was (for the most part) provided by the parties who agreed that it was an appropriate direction. Her Honour added two words to the proposed direction, of which neither party complained, which made the erroneous direction more problematic. [3]

3. [34]

   The trial Judge first directed the jury in the following terms as to the tendency in Mr Taufaao that the applicant sought to establish:

4. [35]

   This direction correctly identified the nature of the evidence and the tendency the applicant sought to establish.

5. [36]

   However, her Honour went on to explain the way that the evidence might be used to draw an inference that the alleged victim in fact had the tendency alleged:

6. [37]

   The italicised words – “than not” – were the ones added by Judge English to the parties’ draft direction.

7. [38]

   The applicant was correct to submit, and the respondent was correct to concede, that parts of that direction were erroneous. There were at least three flaws in the direction.

8. [39]

   First, the jury should not have been directed that it should be “very careful about drawing the inference asked of you by the defence”. There was nothing wrong with directing the jury that the process of drawing an inference should be a rational one, but it will rarely be appropriate for a jury to be warned that it needs to be “very careful” about drawing an inference favourable to an accused in a criminal trial. That is because the accused, except in unusual cases, bears no onus.

9. [40]

   Secondly, the direction introduced a standard of proof – “whether it is more likely than not” – that the alleged victim acted in accordance with the tendency on the day of the offence. This cast an onus on the applicant to establish that the complainant acted “in the way alleged by the accused on 19 July 2020”. The direction had the capacity to, and perhaps did, reverse the onus of proof. Other directions made it clear that the prosecution bore the onus and emphasised the high standard it was required to meet. Even considered in that context, the direction represented a significant legal error in the summing up.

10. [41]

    Finally, the direction foreshadowed a direction on circumstantial evidence that was shortly thereafter to be given. That direction, as will be seen, was in conventional terms when an inference adverse to an accused is to be drawn. The direction instructed the jury that an inference should not be drawn unless it was “the only rational inference to be drawn”. The general direction on circumstantial reasoning echoed the language of the above direction in which the trial Judge warned the jury to:

11. [42]

    The general directions on drawing inferences and on the use of circumstantial evidence included:

12. [43]

    Her Honour drew no distinction between drawing an inference of guilt against an accused person – where all other reasonable inferences must be excluded [4] – and drawing an inference favourable to the applicant as part of her circumstantial case based on the tendency evidence.

13. [44]

    It is, by now, well established that tendency evidence is a species of circumstantial evidence and there is no requirement that it be proved to any particular standard, let alone (as these directions were want to suggest) that it must be proved beyond reasonable doubt: see, for example, The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) at [86]. Bauer was concerned with tendency evidence adduced against an accused person. In the present case, the evidence was adduced on behalf of the accused. It was wrong to suggest that she bore an onus of proof on this or any other issue in the trial.

14. [45]

    As Simpson AJA said in Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246 (“Basanovic”) at [62]:

15. [46]

    Basanovic was a case where the accused relied on tendency evidence concerning the state of mind and behaviour of the alleged victim. The Basanovic brothers were charged with the murder of a man called Mr Mitrovic. Evidence was led to suggest that Mr Mitrovic had a tendency to become angry and violent when his commercial interests were threatened. Evidence of a number of incidents was led to establish the tendency. The trial Judge directed the jury:

16. [47]

    That direction was held to be erroneous. In the case of Michael Basanovic, where self-defence was an arguable issue in the trial, the Court quashed the conviction and ordered a new trial.

17. [48]

    The misdirections in the applicant’s case were of a somewhat different kind. However, the combination of them was just as likely, perhaps more likely, to lead the jury to adopt an erroneous reasoning process. The jury should not have been warned to exercise caution before drawing inferences based on the tendency evidence and the tendency directions should not have been tied to circumstantial evidence directions requiring that all other rational inferences need to be excluded. Perhaps most significantly, the directions cast an onus on the applicant on one of the central issues in the trial: that is, who was the aggressor in the incident? As it was put by Mr Lange in his written submissions:

18. [49]

    For those reasons, I formed the view that the respondent’s concession should be accepted and that both grounds of appeal must be upheld. That leads to a consideration of the application of the proviso to s 6 of the Criminal Appeal Act.

The proviso

1. [50]

   The respondent submitted that despite the misdirection, the Court would form the view that no substantial miscarriage of justice actually occurred.

2. [51]

   The respondent referred to evidence capable of supporting the complainant’s account and directed the Court’s attention to inconsistencies between the applicant’s initial account to police and the account she provided in the ERISP. It was submitted that the crime scene photographs supported the complainant’s account and were inconsistent with the account provided by the applicant. It was further submitted that the photographs of the applicant taken shortly after the event depicted no injuries to her face and that this, according to the respondent’s submission, was inconsistent with her account that the complainant slapped her.

3. [52]

   The respondent went so far as to suggest the applicant’s account was “glaringly improbable”. That expression derives from the High Court’s judgments in Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 (“Hofer”) at [58], [61]-[62], [88] and some earlier cases: see, for example, Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [66]. I was of the view that it was inapposite to the circumstances of the present case.

4. [53]

   There were a number of features of the applicant’s interviews with police which were compelling. She was given the opportunity, by a leading and suggestive question, to accuse her former partner of domestic violence. She declined that invitation. She appeared to answer the questions in a forthright manner, with little hesitation. I am not persuaded that the lengthy narrative provided in the ERISP was particularly inconsistent with the things she said to police at her home, at which point she was attempting to get dressed and prepare herself to be escorted to the police station. It was a brief description of what she said happened, largely devoid of detail. In the body worn footage, she pointed the police in the direction of the scissors albeit that she did not know exactly where they were. She said words to the effect of “they are out there somewhere” pointing in the direction of the living room and kitchen. In both interviews, Ms Waldron said the applicant slapped her. At no stage did she say she was injured or bruised by the slapping. The body worn video showed her putting makeup on her face before she was taken to the police station.

5. [54]

   The respondent took the Court to the crime scene photographs which showed that the trail of blood spots commenced “just inside the door to the garage, and not in the middle of the garage near the chairs and tables”. Two things might be said of this submission. First, the complainant said he did not enter the garage so this physical evidence, such as it is, is not consistent with his account. Secondly, there was no evidence that the complainant immediately started to bleed and there was no expert evidence as to how soon after the stabbing it was likely that the victim would commence to drop blood on to the floor. All the evidence suggests he left the garage quickly after the stabbing occurred.

6. [55]

   The respondent also relied on a photograph of the table that the applicant said she and the respondent fell over during the incident. The photograph shows what appears to be a takeaway cup with a straw still standing. The argument was that this was unlikely if, as the applicant said at one stage, the antagonists had fallen into or onto the table. This is a legitimate argument, but it is not foolproof. There is an absence of evidence that the table toppled over or that all (or any) of the items were dislodged. It is also possible, although the evidence is silent on the issue, that somebody picked up the cup if it had been knocked over.

7. [56]

   The respondent submitted that the applicant’s stated belief that she feared for her life could not be accepted because the complainant’s conduct did not justify her forming that belief. It was further submitted that self-defence would not arise unless she had that belief. In other words, stabbing Mr Taufaao could only be a proportionate (or reasonable) response if she did, in fact, believe that she might be killed. I was unable to accept either aspect of these submissions on self-defence. Taking into account all of the evidence, it was open to the jury to accept that the applicant feared for her life. The evidence included, if accepted, a history of the complainant making serious threats against the applicant and his immediate physical attack on Ms Waldron who, looking at the body worn videos of both of them, is a much smaller person. It is also to be remembered that the incident happened very quickly and in a situation of some urgency when the applicant was sitting in her garage minding her own business. Putting that aside, even if Ms Waldron exaggerated her fear, that does not mean self-defence was not available. In short, a rejection of her evidence that she feared the complainant might actually kill her does not negative beyond reasonable doubt either the subjective or objective component of self-defence. [5]

8. [57]

   In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”) the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said [44]:

9. [58]

   On my evaluation of the evidence, and despite the respondent’s cogent and careful submissions, I was not (and am not) persuaded that self-defence was eliminated beyond reasonable doubt. In reaching that conclusion, I was conscious of the fact that I did not see the two critical witnesses give evidence at the trial. There is nothing in the evidence that led me to reject the applicant’s version of events beyond reasonable doubt. In some respects, the applicant was supported by the evidence of Mr Mordaunt and the tendency case. The other eyewitness, Ms Forbes-Jordan, did not give evidence at the trial.

10. [59]

    In the case of Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 at 375 (“Wilde”) Deane J (dissenting in the outcome) cautioned against the use of the proviso in such a way that the “fundamental prescript” of the administration of criminal justice is undermined. His Honour said that:

11. [60]

    See also Gaudron J (also dissenting) at 382-383. The majority judges in Wilde (Brennan, Dawson and Toohey JJ) at 367-375 did not decline to apply the proviso in circumstances where the case against the applicant was considered to be “overwhelming”. The case against Ms Waldron on the issue of self-defence could not sensibly described in such terms.

12. [61]

    The respondent invites the Court to apply the proviso in circumstances where one of the central issues is particularly appropriate for determination by a jury, as the “constitutional” arbiter of questions of fact in serious criminal cases. That is, assuming the applicant’s assertion that she (subjectively) believed her conduct was necessary is rejected, the tribunal of fact must exclude or eliminate (beyond reasonable doubt) that her conduct was a reasonable response in the circumstances as he or she perceives them. Issues such as reasonableness are generally better determined by a jury rather than a judge or a panel of judges.

13. [62]

    This Court did not see the complainant or Mr Mordaunt give evidence. While there are aspects of the evidence that support the complainant’s version of events, not least of which is the stab wound and the applicant’s admission that she stabbed him, the applicant raised the issue of self-defence in a forthright and forceful way, immediately on being approached by the police. The complainant and his companion arrived out of the blue at the applicant’s home and a physical altercation ensued quickly upon their arrival. The tendency evidence has a capacity to support the applicant’s case in a significant way but the directions, which were legally erroneous, undermined its ability to do so. Moreover, the impugned directions cast an onus on the applicant to establish that the complainant was the aggressor.

14. [63]

    These were significant errors in the trial process. I find it unnecessary to decide whether the reversal of the onus, and the impugned directions, were of such a character to deny the operation of the proviso at all. It is not possible to define in advance the kinds of errors which might be considered to be so “fundamental” that the proviso cannot be invoked. It will depend on all of the circumstances of the case. In Weiss the Court said:

15. [64]

    See also, for example, Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [10], [42]-[43] and [50], Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [14]-[16], [56]-[57]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 (“Baini”) at [65]; Hofer at [72]-75] and Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; [2022] HCA 36 at [26]-[28].

16. [65]

    In Baini Gageler J said at [65]:

17. [66]

    The present case fits into the second “more general” category of case described by Gageler J in Baini. As I have said, it is not necessary in the present case to decide whether the errors in the summing up were so fundamental that the proviso could not be applied. However, the importance of the errors to the issues in the trial are important in determining whether this Court can find that there was no substantial miscarriage of justice. It is unnecessary to go further due to the factual conclusion I expressed above at [58]-[62] that self-defence was not excluded.

18. [67]

    It follows that I was not satisfied that no substantial miscarriage of justice actually occurred.

19. [68]

    It was for those reasons that I joined the orders made on the day of the hearing.

20. [69]

    SWEENEY J: The reasons of Hamill J encapsulate my own for joining in the orders of the Court on 2 June 2023.