Abbott v R

1. [1]

   HIDDEN J: I have had the advantage of reading in draft the reasons of Schmidt J.

2. [2]

   I agree with her Honour that the Crown prosecutor’s argument about the competing credibility of Mr Webb and the appellant, and the suggestion that the appellant was attempting by his evidence to discredit the complainant, does not amount to consciousness of guilt reasoning. As to the complaint that the argument is illogical, that was a matter for the jury to determine. It did not call for a judicial direction. The same is true of the allied argument which was characterised by senior counsel for the appellant as “a shortcut to conviction.”

3. [3]

   Viewed in isolation, the prosecutor’s rhetorical question “Who do you believe?” might convey that the verdict turned on an assessment of the credibility of the appellant against that of Crown witnesses. However, the passages from the summing-up set out in the judgment of Schmidt J could have left the jury in no doubt as to the burden of proof borne by the Crown, and the fact that the accused bore no such burden.

4. [4]

   On the other hand, the argument to the effect that the accused’s interest in the outcome of the proceedings was relevant to his credibility should not have been put, as the Crown prosecutor in this court acknowledged. However, after careful consideration, I accept his characterisation of it as “an unfortunate blemish” which would not have occasioned a miscarriage of justice, given that there was one brief reference to it in the prosecutor’s address and given the clear directions of the trial judge as to the burden of proof.

5. [5]

   I agree that the appeal should be dismissed.

6. [6]

   PRICE J: I agree with Schmidt J.

7. [7]

   SCHMIDT J: In December 2013 the applicant was convicted of having wounded George Tucker with intent to cause grievous bodily harm, on the evening of 18 September 2011 at a birthday party being held at Paddington, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The applicant appeals that conviction.

8. [8]

   In January 2014, Syme DCJ sentenced the applicant to a term of imprisonment of 7 years with a non-parole period of 3 years and 6 months. The maximum penalty for the offence was 25 years imprisonment. A standard non-parole period of 7 years applied to the offence.

The issues raised on appeal

1. [9]

   One ground of appeal was pressed, namely, that the trial miscarried by reason of statements and submissions made by the Crown prosecutor in his closing address.

2. [10]

   There was no issue at trial that the applicant and Mr Tucker were both guests at the party and that they had both been drinking. At one point during the evening, they and others left the party and attended a nearby hotel to watch a rugby match. Whether they had taken cocaine after they returned, and how much the applicant had drunk was in issue.

3. [11]

   The case turned on the credibility and reliability of the evidence given by Mr Tucker and the applicant.

4. [12]

   The applicant and Mr Tucker had both been on friendly terms, but during the evening antagonism arose between them. They were both later in the kitchen, together with Richard O’Dea and Pat Kelly. It was then, it was alleged, that the applicant hit Mr Tucker with a beer bottle, striking him just above the ear and cutting him with the broken bottle. Both the applicant and Mr Tucker gave evidence, as did Mr O’Dea and the host of the party, Mr Balchin. While nearby Mr O’Dea did not see the blow being struck. The applicant left the party immediately afterwards and Mr Tucker was taken to hospital, where he was treated for the cut, which required 18 stitches, as well as other minor cuts and abrasions near his hairline, and bruising and bumps on the side of his head above his left ear.

5. [13]

   The applicant’s case on appeal was not raised below. At the trial no objection was taken to the Crown’s address and Syme DCJ was not asked to give the jury any particular direction to deal with the matters which, on appeal, were submitted for the first time to have given rise to a miscarriage of justice.

6. [14]

   The applicant’s case on appeal was firstly, that the Crown prosecutor ought not to have addressed as he did, because it was suggested to the jury that the applicant had a motive to lie, contrary to Robinson v R [No 2] [1991] HCA 38; 180 CLR 531, as explained in Hargraves [2011] HCA 44; 245 CLR 257 at [45] - [46].

7. [15]

   The prejudice which resulted for the applicant had not been removed by any direction later given by Syme DCJ. It was submitted that “[n]othing short of an explicit direction to ignore [the Crown’s] submissions (and put them aside entirely)” would have sufficed in the circumstances which had arisen.

8. [16]

   It was further submitted that the Crown’s address introduced consciousness of guilt reasoning, contrary to Edwards v R [1993] HCA 63; 178 CLR 193 and Zoneff v R [2000] HCA 28; 200 CLR 234. Again the prejudice which resulted was not addressed by directions which ought to have been given by the trial judge (see Campbell [2005] NSWCCA 132 at [36] - [43]).

9. [17]

   Objection was also taken to the suggestion that the applicant had lied in his evidence as to what he had drunk in order to discredit another witness, which was a sufficient basis for the jury to reject the rest of his evidence. This was submitted to have amounted to an impermissible “short cut to conviction.”

10. [18]

    Finally, objection was taken to the Crown having posed the question “Who do you believe?” That, it was submitted, went to the heart of the accusatorial process and the burden of proof discussed in Hargreaves at [39] - [46] and had resulted in a miscarriage of justice.

11. [19]

    In the result, the leave required under s 5 of the Criminal Appeal Act 1919 (NSW) would be granted, the appeal upheld and a retrial ordered.

12. [20]

    In my view leave to appeal under s 5 should be granted, given the Crown’s concession, but the appeal would have to be dismissed.

13. [21]

    No objections were taken at trial to any of the matters raised on appeal and no directions were sought of the trial judge, as to the aspects of the Crown’s address it is now complained gave rise to a miscarriage of justice. In these circumstances Rule 4 of the Criminal Appeal Rules (NSW) applies. It provides that no omission to direct by the trial judge may be advanced as a ground for appeal without leave, unless objection was taken at the trial to the omission by the party applying for leave to appeal.

14. [22]

    In the circumstances of this case, leave under Rule 4 ought to be given, even though the course taken at trial was the result of forensic decisions then made by the applicant, given what was in issue. It was then plainly recognised that the way in which the Crown put its case did not amount to a miscarriage of justice and did not require further directions to be given by the trial judge, given the written and oral directions which were in fact given.

15. [23]

    The case turned entirely on the truthfulness and reliability of evidence called by the Crown and that given by the applicant. The applicant elected to give evidence and accordingly, his evidence was subject to the same tests which are generally applicable to witnesses in a criminal trial: Robinson v The Queen at 536.

16. [24]

    Syme DCJ instructed the jury at the outset that the Crown had to prove the charge to which the applicant had pleaded not guilty, beyond reasonable doubt. The jury was also instructed that they would have to assess the witnesses’ evidence and that they did not have to accept or reject the whole of any witness’ evidence, but could accept or reject a part of the witness’ evidence, if there was a logical and proper reason to do so.

17. [25]

    The Crown’s case was circumstantial. It was opened by the Crown on the basis that it had to prove beyond reasonable doubt that the applicant had wounded Mr Tucker at the time and place alleged, intending to cause him grievous bodily harm. The evidence which Mr Tucker and other witnesses were expected to give was outlined and the jury was informed that none of them would say that they had seen the applicant wound Mr Tucker. The jury was not at that point addressed by counsel for the applicant.

18. [26]

    Evidence was called by the Crown from Mr Tucker, Mr Balchin, Mr O’Dea, Mr Webb and Detective Senior Constable Walker and various things were tendered. The applicant then gave evidence.

19. [27]

    The applicant’s evidence as to how much alcohol he had consumed conflicted with that given by Mr Webb, who had not consumed any alcohol at the party. Mr Webb’s credit was not challenged. The applicant’s evidence about the altercation with Mr Tucker and that given by Mr Tucker, also conflicted. Their credit was in issue. The jury thus had to decide whose evidence they would accept on critical matters. Whether the jury would prefer the applicant’s evidence over that of Mr Webb, was, in the circumstances, important to how the conflict between the evidence of Mr Tucker and the applicant would be resolved.

20. [28]

    The Crown then addressed the jury on these matters.

21. [29]

    The first parts of the address quoted below, which are highlighted in bold, were relied on appeal, to establish the miscarriage of justice claimed. It is important to see those parts of the Crown’ address in their context. It was submitted, by the Crown, as to the witnesses’ evidence:

22. [30]

    As to credibility it was submitted:

23. [31]

    As to assessing the witnesses it was submitted:

24. [32]

    As to motive it was submitted:

25. [33]

    As to the conflict in the evidence of the witnesses it was submitted:

26. [34]

    It was also explained how other circumstantial evidence supported Mr Tucker’s account. The jury was invited to accept his evidence and convict the applicant.

27. [35]

    The case then put for the applicant in response was that the jury should not speculate or guess as to what had happened, particularly in relation to glass on the floor of the kitchen. The jury was reminded that they had to be satisfied that the Crown had established its case beyond reasonable doubt and that:

28. [36]

    As to motive it was submitted for the applicant that:

29. [37]

    On appeal it was accepted that the submission in bold referred to a proposition which had been put to Mr Tucker in cross-examination.

30. [38]

    As to Mr Webb’s evidence it was submitted:

31. [39]

    On appeal it was accepted for the applicant that what was submitted above in bold had not been put in cross-examination to Mr Webb, but there was no objection and the trial judge did not refer to it in her summing-up.

32. [40]

    In her summing up Syme DCJ explained to the jury repeatedly that the onus lay on the Crown to prove the applicant’s guilt beyond reasonable doubt. That was also repeated in the written directions the jury received, where it was directed as to the evidence:

33. [41]

    Her Honour explained in her summing up how the evidence of the witnesses was to be assessed; that the jury was not obliged to accept the whole of a witness’ evidence and that if there was a logical reason for accepting only a part, the whole of the evidence did not have to be accepted. Her Honour also identified what was not in issue; what had to be resolved; and how the jury would go about that task.

34. [42]

    Directions were given as to self defence and the onus which lay on the Crown in that regard. Her Honour directed that:

35. [43]

    As to the conflict between the witnesses’ evidence, her Honour directed:

36. [44]

    Her Honour also gave a particular warning in relation to Mr Tucker’s evidence:

37. [45]

    Directions were also given as to the circumstantial evidence, including that the jury was not to speculate in relation to inferences and in relation to Mr O’Dea’s evidence.

38. [46]

    As to the applicant’s evidence her Honour directed:

39. [47]

    Her Honour asked the parties whether there were any other matters which ought to be addressed. There were not.

40. [48]

    As the Crown accepted on appeal, the prosecutor’s address to the jury as to the various witnesses’ evidence ought not to have been advanced on the basis that the fact that the applicant had an interest in the outcome of the proceedings was relevant to assessing his credibility. It is that concession which in my view should lead to leave under Rule 4 being granted. That occurred when the Crown submitted:

41. [49]

    Whether a miscarriage of justice resulted, however, must be determined in the context of all that occurred at this trial.

42. [50]

    The Crown submitted at trial that Mr Webb had no motive to lie about how much alcohol the applicant had consumed and that if his evidence was accepted over that of the applicant, the jury might consider why the applicant was not telling the truth about that matter. The question posed was:

43. [51]

    There was nothing objectionable in this submission. These were matters which the jury was entitled to consider in determining whether to prefer the evidence of Mr Webb, or that of the accused.

44. [52]

    It was further submitted by the Crown that if the applicant’s evidence as to how much alcohol he had consumed was rejected, the jury might consider that to be a basis on which it would reject his evidence outright, because:

45. [53]

    This submission is not contrary to what was discussed in Hargraves and Robinson, or that discussed in MAJW v Regina [2009] NSWCCA 255, where it was observed at [40]:

46. [54]

    The submissions in relation to whether Mr Webb or the applicant should be believed on the question of how much alcohol the applicant had consumed did not rest on the applicant’s interest in securing an acquittal, or that he should be treated as a suspect witness, but rather on an analysis of how credit issues lying between him and Mr Webb might be resolved and what impact that might have on how the jury would resolve the credit issue lying between the applicant and Mr Tucker. They were matters which the parties were entitled to address and which the jury had to consider and resolve.

47. [55]

    Nor did these submissions undermine the standard of proof which fell on the Crown, or the presumption of innocence to which the applicant was entitled. In Palmer v R [1998] HCA 2; 193 CLR 1, the problem was cross-examination of the accused to show that he could not prove any ground for imputing a motive to lie to the complainant. The law does not require an accused to prove that a complainant has a motive for the making of false accusations and so it was concluded that the questions there asked of the accused invited speculation and diminished the onus of proof which fell on the Crown.

48. [56]

    This was a different case. Here the Crown’s submission that the jury might conclude that the applicant had sought to discredit Mr Tucker’s evidence, by lying about the level of his own intoxication, was a matter plainly open to the jury to consider in deciding whether to prefer the evidence of the applicant over that of Mr Webb and Mr Tucker, and a matter which the Crown was entitled to raise for its consideration.

49. [57]

    In Robinson, by way of contrast, what was in issue was a direction which included (see at 532):

50. [58]

    It was held at 535:

51. [59]

    In Hargraves it was observed at [45] - [46]:

52. [60]

    There it was concluded that the impugned direction was unlikely to have been given much prominence by the jury and would not have been understood as meaning that the appellants’ evidence had to be scrutinised more carefully than that of other witnesses and that “read as a whole, the instructions which the judge gave would not have deflected the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt” (see [49]. Accordingly there was no miscarriage of justice.

53. [61]

    This is a similar situation.

54. [62]

    Here it is the Crown’s address which is submitted to have given rise to a miscarriage. It was not, however, submitted for the Crown that the applicant’s evidence had to be scrutinised more carefully than that of other witnesses, but rather that the jury would consider whether the applicant had lied about his level of intoxication, in order to discredit the evidence of Mr Tucker. The brief reference to the applicant’s motive for lying being that he faced a serious criminal charge is unlikely to have been given prominence by the jury, given the other matters addressed by both parties as to the factual issues which they had to resolve and the directions which Syme DCJ gave the jury.

55. [63]

    What was submitted is unlikely to have been understood as meaning that the applicant’s evidence had to be scrutinised more carefully than that of other witnesses. The directions given by Syme DJC as to what had to be determined, how the evidence of the witnesses, including the applicant, was to be assessed, namely in a similar way, also diminished the likelihood that the submission as to the applicant’s motive would have been given the prominence found in Robinson.

56. [64]

    No objection was taken to the Crown’s submissions at trial, nor were particular directions sought in relation to the accused’s evidence, understandably given the written and oral directions which Syme DCJ gave. On appeal, it is the absence of an instruction that the Crown’s submissions on how the credit issues lying between the Crown witnesses and the accused should be resolved, namely by ignoring the Crown’s submissions, which were submitted to have given rise to a miscarriage.

57. [65]

    That submission may not be accepted. Given the credit issues on which this case turned, had such a direction been sought, it could plainly not have been given.

58. [66]

    Nor can it be accepted that the Crown’s submission that the conflict between Mr Webb’s evidence and that of the applicant might be resolved on the basis that the applicant was lying about his sobriety, because he wanted to discredit Mr Tucker’s evidence, was illogical, as the applicant also submitted on appeal.

59. [67]

    Nor can the argument that the Crown’s submission rested on “comparative motives to lie”, which amounted to consciousness of guilt reasoning accepted. In Zoneff v R it was observed at [15] – [17]:

60. [68]

    At trial, what was in issue was whether the applicant had cut Mr Tucker’s face deliberately, or recklessly, or accidentally. The difficulty with the evidence of both the applicant and Mr Tucker was that they were both intoxicated at the time of the offence, on the Crown’s case, each having consumed alcohol and cocaine.

61. [69]

    Mr Tucker had accepted in his evidence that he had consumed a considerable amount of alcohol. The applicant’s evidence was that he had not taken cocaine and that he had only had six drinks that night. This evidence conflicted with that given by Mr Webb and Mr Tucker and was challenged in cross-examination. The submission that the applicant had lied about what he had consumed, in order to enhance the credibility of his evidence, by way of comparison to that of Mr Tucker, did not amount to consciousness of guilt reasoning.

62. [70]

    As the Crown argued, that submission quoted at [33] above properly drew to the jury’s attention that they could not convict the applicant unless they had rejected his evidence as to how the cut had come to be inflicted and invited them to do so, by accepting that the applicant had lied about his consumption of alcohol, in order to enhance his credibility by comparison to that of Mr Tucker. That was not a “short cut” to conviction, as was submitted on appeal.

63. [71]

    There was, it follows, no miscarriage in posing the question “[a]nd who do you believe?” in the passage quote at [33] above. What was being put was properly, that if the jury believed the applicant’s account of the incident in which Mr Tucker was injured, he had to be acquitted.

64. [72]

    That was a question which the jury had to resolve, in accordance with the directions which Syme DJC gave.

Orders

1. [73]

   For these reasons, while it may be appropriate to refuse the leave sought under s 5, given the Crown’s concession on appeal I would order that leave be granted and the appeal dismissed.