Scaysbrook v R

1. [1]

   BELLEW J: Grant Thomas Scaysbrook (the applicant) pleaded not guilty to an indictment presented against him in the District Court alleging the following offences:

   1. (1)

      on 16 February 2018, at Belrose in the State of New South Wales, did inflict grievous bodily harm on Timothy Humphries, a police officer acting in the execution of his duty, and was reckless as to causing actual bodily harm to Timothy Humphries (count 1).

   2. (2)

      on 16 February 2018, at Belrose in the State of New South Wales, did assault Timothy Humphries, a police officer acting in the execution of his duty, and by the assault did occasion actual bodily harm to Timothy Humphries (count 2). [1]

   3. (3)

      on 16 February 2018, at Belrose in the State of New South Wales, did assault Steven D’Rozario, a police officer acting in the execution of his duty, and by the assault did occasion actual bodily harm to Stephen D’Rozario.

2. [2]

   Count 1 was an offence contrary to s 60(3) of the Crimes Act 1900 (NSW) whilst counts 2 and 3 were offences contrary to s 60(2).

3. [3]

   Following a trial before her Honour Judge Noman SC and a jury, the applicant was found guilty of counts 1 and 3. He was subsequently sentenced to 3 years’ imprisonment commencing on 8 June 2020 with a non-parole period of 1 year and 11 months imprisonment. He is due to be released to parole on 7 May 2022.

4. [4]

   The applicant now seeks to appeal solely in respect of his conviction on count 1. None of the grounds on which he relies involves a question of law alone, and accordingly leave to appeal is required.

AN OVERVIEW OF THE RESPECTIVE CASES AT TRIAL

1. [5]

   At about 8:00pm on 16 February 2018, Senior Constable Sean Fernandes (Fernandes), Leading Senior Constable Benjamin Fillingham (Fillingham), Senior Constable Steven D’Rozario (D’Rozario) and Senior Constable Tim Humphries (Humphries) had set up a stationary breath testing unit for northbound traffic on the Forest Way at Belrose. A police bus, equipped with a breath analysis machine, was parked nearby.

2. [6]

   At approximately 8:30pm, the applicant was directed to stop for the purposes of undergoing a random breath test. He presented his driver's licence, following which Fernandes requested that he count from 1 to 10 into a handheld alcolizer unit. The result of that preliminary test indicated the presence of alcohol in the applicant’s bloodstream. On the Crown case, after the applicant had been asked to get out of his vehicle, he became aggressive and pushed Humphries to the chest, causing Humphries to fall over and break his wrist. That part of the incident gave rise to count 1. Police then subdued the applicant and placed him in handcuffs, in the course of which he kicked D’Rozario in the groin causing him actual bodily harm. That part of the incident gave rise to count 3.

3. [7]

   It was the applicant's case that the police were the aggressors, that they had “bent” his arm while searching him, causing him pain, and that in reaction to the pain he turned around and pushed Humphries, who simply fell to the ground without being injured. On the applicant’s case, the scuffle continued after Humphries had regained his footing, in the course of which Humphries grabbed his (the applicant's) collar. The applicant asserted that at that point, Humphries caught his heel in the footpath, lost his balance and fell backwards onto the concrete. On the applicant's case, Humphries injured his wrist as a result of falling to the ground at that time, and D’Rozario was injured when he (i.e. the applicant) pushed his foot upwards during the scuffle, in an attempt to avoid what he described in his evidence as “asphyxiation”. The applicant asserted that he had been the subject of a serious assault by the police, involving the application of what he described as “blunt force” to various parts of his body.

Preliminary matters

1. [8]

   In addressing the evidence at the trial three matters should be noted at the outset.

2. [9]

   First, in circumstances where the applicant seeks leave to appeal solely in respect of his conviction for the offence in count 1, the summary which follows is primarily directed towards the evidence relevant to that count, and does not address in detail the evidence in relation to that part of the incident which led to the injury sustained by D’Rozario which was the subject of count 3.

3. [10]

   Secondly, much of the dialogue which passed between the police and the applicant during the course of the incident giving rise to the charges was recorded. That recording was before the jury [2] along with a transcript. [3] In reviewing the evidence for the purposes of this judgment, I have listened to that recording on two separate occasions, using the transcript as an aide memoire.

4. [11]

   Thirdly, the following facts were agreed: [4]

The evidence of the police officers

1. [12]

   Fernandes gave evidence [5] (which was not challenged) that when the applicant was asked to count into the alcolizer, the bar on the device “completely filled with orange” which he said was “an indication of a large amount of alcohol present in this passive test, and displayed a warning for alcohol.” Fernandes then affixed a tube to the device and asked the applicant to blow through it. The applicant responded, on two occasions, with words to the effect:

2. [13]

   Fernandes then told the applicant that he was under arrest. The applicant stepped out of his vehicle, at which time Fernandes saw him put a cigarette in his mouth. Fillingham informed the applicant that he was under arrest, and directed him to remove the cigarette. When the applicant failed to do so, Fillingham removed it. [7] Fernandes said that at that point the applicant “tensed up his body muscles" [8] and said:

3. [14]

   Fernandes and Fillingham then took hold of the applicant’s arms and walked him towards the nearby police bus, Fillingham saying:

4. [15]

   It was at about this point that the recording device became operative. As the police walked with the applicant towards the bus, the following exchange was recorded: [11]

5. [16]

   Contrary to what was suggested by Fernandes, there was no visual recording of what was taking place. Whilst there was a camera operating from inside one of the parked police cars, it was fixed and thus provided a view of the random breath testing station but not the surrounding areas.

6. [17]

   Fernandes described the applicant, as he was being walked to the bus, as “still tense” with “his arms… close to his body, and his face… slightly tensed”. [12] At about that point, the following further exchange was recorded: [13]

7. [18]

   Fernandes said that the applicant complied with that last request and placed his hands on the breath testing bus, saying that at that point the applicant appeared to have “eased his muscles” and was “no longer as tensed”, as a result of which Fernandes eased his grip on the applicant's left arm. [14] At that point, the following further exchange was recorded: [15]

8. [19]

   Humphries then searched the applicant. Fernandes described the applicant as being “a bit more relaxed” [16] at that point, as a consequence of which he and Fillingham let go of him and walked about a metre away. At that stage, the following further exchange was recorded: [17]

9. [20]

   Fernandes said that as the applicant said those last words, he turned his body away from facing the bus and took his right hand away. At that point, Fillingham said:

10. [21]

    Fernandes said that Fillingham then took hold of the applicant's right arm and held it back down on the breath testing bus. Fernandes then stepped towards the applicant with the intention of taking hold of him again. In the course of this, Fillingham said:

11. [22]

    Fernandes’ account of what then ensued was as follows: [20]

12. [23]

    At this point the following exchange was recorded: [21]

13. [24]

    Fernandes described what then occurred: [22]

14. [25]

    Consistent with the evidence of Fernandes, it was the Crown’s case that in the course of this part of the incident, Humphries fell and fractured his arm. What occurred was described by Humphries in the following terms: [23]

15. [26]

    Fillingham’s evidence was to a similar effect: [24]

16. [27]

    Prior to this, D’Rozario had been sitting in a nearby police vehicle conducting checks. His attention was directed to the incident as a result of hearing the applicant’s voice becoming louder, and it was this that caused him to become involved. [25]

17. [28]

    In the course of these events occurring, the following exchange was recorded: [26]

18. [29]

    Fernandes said that at this time the applicant was “violently thrashing his body and thrashing his legs”, [27] at which stage the following exchange was recorded: [28]

19. [30]

    Fernandes said that shortly after this, the applicant, whilst lying on the ground, [29] “physically lashed out” and swung his left leg “hard and fast” in the direction of D’Rozario. [30] It was this part of the incident which gave rise to count 3. At about this time, the following exchange was recorded: [31]

20. [31]

    The applicant was then taken to a caged police truck which had arrived at the scene. D’Rozario removed the applicant's boots and belt. The applicant continued being verbally abusive whilst resisting the police. [32] During this part of the incident the following exchange was recorded: [33]

21. [32]

    After the applicant had been placed in the truck, Fernandes noticed that Humphries’ right wrist was “disfigured”, that “none of his fingers were moving”, that his right wrist joint appeared to be “displaced” in comparison with the left wrist, and that he was “visibly and verbally in pain”. [34] Fernandes also described D’Rozario to be “visibly and verbally in pain, complaining of nausea and pain in his groin area”. [35]

22. [33]

    Fernandes was cross-examined at some length about his exchange with the applicant when his vehicle was first stopped. That cross-examination culminated in the following questions: [36]

23. [34]

    A similar suggestion regarding the editing of the recording was made to Fernandes at a later point in his cross-examination, which he again denied. [37] However, he did accept that there were occasions where the recording stopped working. [38] Having listened to the recording, there are portions where the sound drops out. Why that occurred was not the subject of any specific evidence, but in my view there is no basis on which to draw any adverse inference from the fact that it occurred. There is certainly no evidence which supports the conclusion that any person tampered with the recording.

24. [35]

    Fernandes accepted [39] that as the applicant was being walked by the police from his car to the bus, he did not struggle. Fernandes was then asked: [40]

25. [36]

    He was then asked: [41]

26. [37]

    The following was then put to Fernandes: [42]

27. [38]

    Fernandes agreed that in light of the fact that 2½ years had elapsed between the incident and the date on which he gave evidence, his recollection had “obviously faded somewhat”. [43] He also agreed that the detail he had provided in his statement was his “best recollection of what had happened”. [44]

28. [39]

    Fernandes denied being aware that the applicant was in pain during the incident, [45] saying that the applicant made no such complaint. [46] He also denied the suggestion that it had been apparent to him (Fernandes) that the applicant was resisting “in order to break free from a painful position”. [47]

29. [40]

    Specifically, in terms of that part of the incident giving rise to count 1, Fernandes denied the suggestion that the applicant “voluntarily went to the ground”, following which Humphries lost his balance and fell backwards. [48] He did agree that he had not specified in his statement whether Humphries fell backwards or forwards, [49] and accepted that he had not seen what part of Humphries’ body had made contact with the ground.

30. [41]

    Fillingham’s evidence was that Humphries fell forwards. [50] He agreed that he had not included that detail in his statement, [51] before being asked: [52]

31. [42]

    Fernandes denied that there were “parts of the audio where [the applicant] was struggling to breathe. [53] Fillingham also denied a suggestion to that effect, [54] as did Humphries. [55] I should say that having listened to the recording carefully, I am unable to detect any sound consistent with the applicant having difficulty breathing. The applicant is heard consistently abusing police over a period of approximately 16 minutes without any apparent difficulty, a circumstance which is fundamentally at odds with a suggestion that he was experiencing any difficulty breathing.

32. [43]

    In terms of the incident giving rise to count 1, the following was put to Humphries in cross-examination: [56]

33. [44]

    Senior constable Davenport arrived at the scene following a call for assistance and did not observe the incident giving rise to count 1. [57]

The evidence of the applicant’s attendance at the police station

1. [45]

   The applicant was taken to Manly police station and was described by Constable Dyason (Dyason), a custody officer, as “well-intoxicated”. [58] Dyason also described the applicant as “aggressive”, and said that when informed that he was to be searched, the applicant initially refused. Dyason was required to use force to conduct a strip search, [59] in the course of which the applicant said: [60]

2. [46]

   In light of the applicant’s behaviour, Dyason arranged for the attendance of an ambulance. [61]

3. [47]

   Dyason’s evidence was entirely unchallenged.

The evidence of the Custody Manager

1. [48]

   Senior Constable Hrnjak (Hrnjak) was the Custody Manager at the police station on the evening of 16 February 2018, and in that capacity was working with Dyason. [62] He gave evidence that the applicant was escorted into the charge room at approximately 9:15pm and that he was screaming, aggressive, and abusing police, to the extent that he (Hrnjak) formed the view that the applicant appeared to be affected by alcohol or drugs. [63]

2. [49]

   When Hrnjak attempted to introduce himself to the applicant and explain his role, the applicant responded by telling him to “fuck off”, before refusing to provide his full name, date of birth and address. [64]

3. [50]

   Hrnjak then read the applicant his rights pursuant to Part 9 of the Law Enforcement (Powers and Responsibilities) Act NSW (2002). When he told the applicant he would give him a copy of the relevant documentation setting out those rights, the applicant responded: [65]

4. [51]

   Hrnjak was not cross-examined.

The evidence of the paramedics

1. [52]

   Christie Marks (Marks), a paramedic with the NSW Ambulance Service, gave evidence that at about 10:37pm on 16 February 2018 she received a call to attend Manly police station. [66] She said that when she arrived, she saw the applicant sitting in a holding cell, and noticed him to be “aggressive and swearing at police”. [67] She then said to the applicant:

2. [53]

   Marks gave evidence that she noticed a hematoma on the top of the applicant's head, but said that he was fully alert and answering appropriately to basic questions. [69] Marks also said that she:

3. [54]

   Marks was then asked: [71]

4. [55]

   Marks said that the applicant then became aggressive. [72]

5. [56]

   In answer to subsequent questions by trial judge, [73] Marks gave the following further evidence:

6. [57]

   The cross-examination of Marks was limited to the following: [74]

7. [58]

   In light of one aspect of ground 4, it should be emphasised that it was never put to Marks that the applicant had complained of a shoulder injury.

8. [59]

   Marks' partner, Matthew Grant (Grant), was also called to give evidence. Grant explained that Marks was designated to be the “treating officer” on this particular occasion. [75] He said [76] that the applicant was being “very verbally abusive towards the police” whilst he was there, before giving the following evidence: [77]

9. [60]

   Grant said that he and Marks left a short time later. In cross-examination, he explained that as he was not the treating officer that night, he did not physically touch the haematoma, although he was able to see it. [78]

10. [61]

    As was the case with Marks, it was never put to Grant that the applicant had complained of a shoulder injury.

The applicant’s case

1. [62]

   The applicant gave sworn evidence in his defence. He described Fillingham’s action of removing the cigarette from his mouth as being in the nature of a “karate chopping motion” which made contact with his arm. [79] No such suggestion was ever put to Fillingham, whose unchallenged evidence [80] (corroborated by Fernandes [81] whose evidence was also unchallenged on this point) was that he had taken the cigarette from the applicant’s mouth and dropped it on the ground. The audio recording makes it clear that the applicant did not, at the time, suggest that the cigarette was removed by a “karate chopping motion”. [82]

2. [63]

   In respect of the period leading up to that specific part of the incident which, on the Crown case, gave rise to count 1, the applicant gave evidence that he was “in an immense amount of pain”, [83] and “excruciating pain”, [84] as a consequence of the actions of the police (inter alia) “bending him over with both arms behind (his) back” [85] in what he described as a “chicken wing” motion. The applicant’s evidence was that as a consequence, he had taken “defensive action” because it had “gone too far”. [86] He said that he was in “pain and fear (of) getting tasered, bashed, shocked …. anything (the police) were capable of doing”. [87]

3. [64]

   The applicant’s evidence was that as a consequence of wanting to “stop the pain”, [88] he broke free of the police and turned around to see “Humphries coming at the front of (him) and Fillingham coming in from the left”. [89] The applicant was then asked the following:

4. [65]

   The applicant said that although he had the opportunity to punch Humphries, he had not done so because he had “respect” for the police. [90] He said that at one point of the altercation he “thought (he) was dead”, [91] and that when he hit the ground the front of his face struck the concrete. [92] The applicant also said that at the time of the incident involving D’Rozario, he was “asphyxiated” and that there “wasn’t any oxygen getting to (his) brain”. [93] He also said that at the point where he was recorded as saying words to the effect “Are you having fun boys”, the police were “bashing” him. [94]

5. [66]

   When asked in cross-examination why he had not made any complaint of being assaulted when such assaults were allegedly taking place, the applicant said that it was because of his “level of anxiety .. and pain”. [95] He was then asked: [96]

6. [67]

   It was suggested to the applicant, at various points in the course of cross-examination, that he was not telling the truth in respect of particular aspects of his account. On each of those occasions, he denied the suggestion which was put. [97] He maintained that he was subjected to what he variously described as bashing and asphyxiation, [98] flogging, [99] blunt force to the ribs, [100] blunt force to the back [101] , blunt force to the legs [102] and blunt force “all over”. Bearing in mind these assertions, the applicant was asked: [103]

7. [68]

   The applicant also asserted that Humphries had, at one point, kicked him to the head, [104] although he later said that Humphries had “hit [him] once in the head” rather than kicking him. [105] Neither proposition was ever put to Humphries in cross-examination. Further, and bearing in mind my earlier observation regarding the fact that Hrnjak’s evidence was not challenged, the applicant unequivocally denied that he had been read his rights, that he had been asked to sign a record of them, or that he was abusive to Hrnjak. [106] However, in an apparent contradiction of at least part of that evidence, the applicant then accepted that it was “possible” that Hrnjak had read him his rights [107] before again denying that this was the case. [108]

8. [69]

   The applicant was also cross-examined about why he had not complained to Hrnjak or Dyason about his alleged treatment at the hands of police. He claimed that he had not done so because of a belief that he had been “taken down to the station for further bashings”. [109] In this regard, the applicant was further cross-examined: [110]

9. [70]

   As to any complaint having been made to Marks and Grant, he was later asked: [111]

10. [71]

    He was then asked: [112]

11. [72]

    The applicant also asserted that in pushing Humphries he was acting in self-defence. [113] In respect of that part of the incident, he was specifically cross-examined as follows: [114]

The application for a further direction in respect of count 1

1. [73]

   The jury retired to commence deliberations late on 7 October 2020 and were allowed to separate later that day. The following morning, an issue was raised by counsel for the applicant which was put in the following terms: [115]

2. [74]

   The trial judge pointed out to counsel that the applicant’s evidence was that he had not done any act which caused Humphries’ injury. Her Honour postulated that this might have been the reason why the applicant had given no direct evidence about what his state of mind was at the time. [116] The following exchange then took place between her Honour and counsel for the applicant: [117]

3. [75]

   When her Honour asked counsel for the applicant to take her to that part of the applicant’s evidence referred to in the italicised portion of the last paragraph of the extract above, counsel did not do so. [118]

4. [76]

   After further exchanges with counsel, her Honour declined to give the jury any further direction. [119]

Ground 3 – It was not open to the jury to convict on the evidence

1. [77]

   These grounds may be conveniently dealt with together.

2. [78]

   It should be noted that in the course of the hearing before this Court, counsel for the applicant (who was also counsel for the applicant at trial) acknowledged that ground 3 was effectively a duplication of ground 2. In these circumstances, I will treat ground 3 as having been abandoned.

Submissions of the applicant

1. [79]

   The principal submission advanced by counsel for the applicant in support of grounds 1 and 2 was based upon an asserted failure by the Crown to properly put its case to the applicant in cross-examination. It was submitted, in particular, that the Crown had not put to the applicant that he had “turned his mind to the possibility of ABH” which, it was submitted, was “a critical element of the defence”. [120]

2. [80]

   It was further submitted that there were no “Brown [sic] v Dunn questions on this issue”, [121] and that compliance with what is generally referred to as the rule in Browne v Dunn required the Crown to specifically put to the applicant, in cross-examination, that he was reckless as to causing Humphries actual bodily harm. Counsel cited the decision of this Court in R v Birks [122] as authority for the proposition that compliance with the rule can only be effected by specifically putting relevant matter(s) to a party in cross-examination.

3. [81]

   Counsel submitted that in circumstances where the Crown had not put to the applicant that he was reckless, there was no basis on which it was open to the jury to reject the applicant’s account of events, and, in particular, the applicant’s account of how Humphries was injured [123] because (inter alia) the applicant’s account was “not necessarily inconsistent” with that advanced by the Crown. [124]

4. [82]

   These submissions were expanded upon in the course of oral argument. However, the essence of the applicant’s position was that in the absence of matters having been properly put to him, the jury was bound to accept his account of events and return a verdict of not guilty in respect of count 1.

Submissions of the Crown

1. [83]

   The Crown before this Court (who was not the Crown at trial) submitted that what had been required of the Crown, as a matter of fairness, was that the accused be put on notice of the case against him. It was the Crown’s submission that this requirement had been met by (inter alia) the fact that the Indictment specifically averred the element of recklessness, as well as by the fact that the Crown had squarely put its case to the applicant in cross-examination. It was further submitted that it had been well open to the jury to infer, from the entirety of the evidence, that the applicant had contemplated the possibility of actual bodily harm being sustained to Humphries when he pushed him, causing Humphries to fall and fracture his wrist.

2. [84]

   The Crown further submitted that, contrary to what had been put by counsel for the applicant, it was plain the applicant’s case was inconsistent with that of the Crown in a number of material respects, and that to the extent that there were any inconsistences between the accounts of the police, it remained a matter for the jury to consider and resolve them when determining the ultimate question, namely, whether they were satisfied that the Crown had proved its case beyond reasonable doubt. In this regard, the Crown pointed to the fact that in the course of his final address to the jury, counsel had sought to make much of these inconsistencies. The Crown submitted that in those circumstances it should be assumed that the jury considered such matters, but were nevertheless satisfied beyond reasonable doubt that the applicant was guilty of the offending in count 1.

3. [85]

   The Crown submitted that when regard was had to the fact that the jury had an obvious advantage in assessing the credibility of the various witnesses who gave evidence, it could not be said that they must have had a reasonable doubt about the applicant’s guilt.

Consideration

1. [86]

   In considering grounds 1 and 2, the question for this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [125] In Libke v The Queen [126] Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test in this way:

2. [87]

   In Pell v The Queen, [127] the Court said (in reference to that passage from Libke): [128]

3. [88]

   For the purposes of determining this ground, this Court must undertake its own independent assessment of the evidence. In doing so, this Court must have regard to the fact that the jury is the body entrusted with the primary responsibility of determining the guilt or innocence of an accused, as well as the fact that the jury had the benefit of seeing and hearing the witnesses give evidence. [129] For these reasons, deference must be accorded to the verdict, firstly because the jury were in a better position than this Court to assess the credibility of witnesses, and secondly because of the constitutional authority of the jury. [130] These principles are of particular significance in the present case in light of the attacks made on the credit of the police officers who gave evidence.

4. [89]

   The applicant essentially advanced three propositions in support of this ground, namely that:

5. [90]

   Inherent in the first of those propositions is an assertion that there was a breach of what is generally referred to as the rule in in Browne v Dunn [131] on the part of the Crown. It is not necessary for present purposes to canvass the facts in Browne v Dunn. It is sufficient to set out part of the judgment of Lord Herschell: [132]

6. [91]

   Lord Halsbury agreed with Lord Herschell. [133]

7. [92]

   It will be evident from the judgment of Lord Herschell that the essence of the rule is that it is necessary to give notice of any intention to impeach the credibility of an account which a party is advancing. Importantly however, Lord Herschell pointed out (in the italicised part of the passage taken from his judgement above) that in cases where notice has been distinctly and manifestly given to that other party, specific questions do not need to be put in cross-examination. The fact that this is so has been confirmed in a number of subsequent authorities.

8. [93]

   For example, in Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [134] Hunt J (as his Honour then was) said the following:

9. [94]

   The fact that the requisite notice may be given other than by putting specific propositions in cross-examination was also recognised by Gleeson CJ in Birks: [135]

10. [95]

    In Seymour v The Australian Broadcasting Commission [136] Mahoney JA said:

11. [96]

    The same approach was adopted by Campbell JA (Allsop P and Basten JA agreeing) in Masterton Homes Pty Ltd v Palm Assets Pty Ltd. [137] Similarly, in Spencer v Bamber [138] Campbell JA (Basten JA and Macfarlan JA agreeing) specifically observed that compliance with the rule in Browne v Dunn does not always require an allegation to be put to a witness in the witness box, and that there is no rule of law that evidence which is not challenged in cross-examination must be accepted.

12. [97]

    In my view, bearing these principles in mind, grounds 1 and 2 are not made out for a number of reasons.

13. [98]

    To begin with, the first two propositions advanced by counsel [139] are entirely at odds with the authorities cited above. In particular, contrary to the submission which was advanced, the decision in Birks is not authority for the proposition that compliance with the rule in Browne v Dunn can only be satisfied by specifically putting propositions in cross-examination. Gleeson CJ’s judgment [140] is to the contrary, his Honour specifically observing that the means that may be legitimately employed to put a witness or a party on fair notice of a point are multifarious. Further, as was stated plainly by Campbell JA in Spencer, compliance with the rule does not always require an allegation to be put to a witness in cross-examination, and there is no rule of law that evidence which is not challenged in cross-examination must be accepted. In the present case, the Crown’s cross-examination aside, the applicant was clearly on notice, from the terms of the indictment presented against him and the evidence of the police, that the Crown alleged that he had acted recklessly in committing the offence in count 1.

14. [99]

    The third proposition advanced in support of this ground [141] is similarly untenable. It proceeds on the entirely false premise that the applicant’s account of events was “not inconsistent” with the Crown case. The applicant denied that he had pushed Humphries so as to cause him to fall and sustain injury. That he had in fact done so was the gravamen of the Crown case against him. Plainly, the case of the applicant was fundamentally inconsistent with that of the Crown.

15. [100]

    Further, and contrary to what was put to the trial judge by counsel for the applicant in the exchange set out above, [142] at no point in his evidence in chief did the applicant ever assert that he had not turned his mind to the possibility of occasioning actual bodily harm to Humphries. Indeed, it was the applicant’s case that he had never pushed Humphries causing him any harm at all and that Humphries had fractured his wrist by losing his footing and falling over. The proposition which was put by counsel for the applicant to the trial judge was grossly misleading.

16. [101]

    In any event, the Crown did put its case on count 1 squarely to the applicant in cross-examination by putting to him that he had pushed Humphries, causing him to fall over and suffer serious injury. [143] The applicant gave an entirely non-responsive answer to that question. In those circumstances, he can hardly now complain that the Crown somehow failed in its obligation to put its case to him.

17. [102]

    Aside from all of these matters, and on an assessment of the whole of the evidence, it was clearly open to the jury to find that count 1 was established beyond reasonable doubt. The accounts of the police in respect of the circumstances giving rise to count 1 were generally consistent. To the extent that there were inconsistencies outside of those accounts, they were matters for the jury to assess, bearing in mind that this Court must defer to the fact that the jury were in a better position to assess and determine any issues of credit. Counsel for the applicant addressed on those asserted inconsistencies at length in his closing address to the jury. I accept the Crown’s submission that in light of the emphasis which was placed on those matters in counsel’s final address to the jury, the only available conclusion is that the jury considered those submissions and rejected them.

18. [103]

    Further, and whilst the applicant obviously did not bear any onus whatsoever, the jury were entitled, in determining whether the Crown had proved its case beyond reasonable doubt, to assess the veracity of the applicant’s account of the entirety of the incident. There were a number of assertions made by the applicant which were inconsistent with the objective evidence. For example, the applicant’s assertion that Fillingham removed the cigarette from his mouth by performing what the applicant described as a “karate chop” was completely inconsistent with his contemporaneous statement, heard clearly on the recording, in which he told the police that they “can’t take that”.

19. [104]

    In a broader sense, the essence of the applicant’s evidence was that the police had acted in a particularly aggressive manner towards him, and in doing so had inflicted serious injury upon him. The audio recording of what occurred provided objective evidence from which it was open to the jury to conclude that the applicant was affected by alcohol, and that it was he who had acted aggressively towards the police from the outset rather than the other way around. Further, it was open to the jury to reject the applicant’s repeated assertions of serious injury in circumstances where, apart from the hematoma referred to by Marks, there was absolutely no evidence of the applicant having suffered any injury which was consistent with being “bashed” or “flogged” by the police, or consistent with the application of the repeated blunt force trauma to numerous parts of his body.

20. [105]

    Bearing in mind the clear issues of credit, there were other discrete aspects of the applicant’s case which the jury were entitled to reject. For example, at one point in his evidence that applicant asserted that the front of his face had struck the concrete. [144] There was no evidence of the applicant having suffered any injury consistent with that having occurred. Further, the applicant’s assertion that he did not complain of the pain which was allegedly caused to him because he “wanted to remain silent” [145] was fundamentally inconsistent with his consistent abuse of the police. The applicant also asserted, in response to the suggestion in cross-examination that he must have been very severely injured, that he would have had “bark off [him]”, [146] which I interpret as an assertion that he had lost skin as a consequence of what had occurred. There was no evidence of any such injury, and no evidence of any specific complaint in that regard.

21. [106]

    In light of all of those matters, it was well open to the jury to reject the applicant’s account, to accept the accounts of the police, and to be satisfied beyond reasonable doubt that the Crown case on count 1 was made out. This was certainly not a case in which the jury must have had a reasonable doubt about the applicant’s guilt.

22. [107]

    For all of these reasons, grounds 1 and 2 are not made out.

Ground 4 – Her Honour misdirected the jury by directing the jury that the applicant's evidence did not support that he complained about his shoulder, and erred by directing the jury that no adverse inference can be drawn by the fact the police read from their statements

1. [108]

   Although pleaded as a single ground, ground 4 encompasses two separate and distinct complaints which should be dealt with individually.

Defence counsel’s closing address

1. [109]

   In his closing address to the jury, counsel for the applicant, having referred to the evidence given by Marks that the applicant had asked if he could be provided with a medical certificate “to show the injuries he had”, [147] put the following submission: [148]

2. [110]

   In the absence of the jury, the trial judge expressed some concern about what she considered was a lack of evidence to support some aspects of that submission. It is appropriate that the exchange which ensued between her Honour and counsel for the applicant be set out in full: [149]

3. [111]

   When he resumed his address to the jury, counsel said the following: [150]

4. [112]

   The trial judge, justifiably concerned about the fact that counsel had again put a submission which was not supported by the evidence, raised the matter in the absence of the jury. Again, it is appropriate that the entirety of the exchange between her Honour and counsel for the applicant be set out: [151]

5. [113]

   Upon the resumption of his closing address, counsel made no further reference to the issue.

The direction of the trial judge

1. [114]

   In the course of her summing-up, the trial judge said the following: [152]

2. [115]

   The summing-up of the trial judge concluded a short time later at which point the transcript records the following: [153]

Submissions of the applicant

1. [116]

   The submissions of counsel for the applicant focussed upon the italicised portion of her Honour’s direction, [154] and particularly that part in which her Honour directed the jury that there was “no evidence that the accused complained to anyone about a shoulder injury”. It was submitted on behalf of the applicant that the direction given by the trial judge was erroneous in two respects.

2. [117]

   First, it was submitted that her Honour was in error because the question of whether the evidence supported the account of the applicant “was a matter for the jury and not for the trial judge”. In this regard, counsel submitted that “the ambulance officer’s notes were that [the applicant] complained about his injuries [155] , such that the evidence supported a conclusion that the applicant had complained to Marks about a shoulder injury.

3. [118]

   Secondly, it was submitted that the latter part of the direction, in which her Honour told the jury that there was no evidence that the applicant had complained about a shoulder injury, was erroneous in light of his evidence in cross-examination that he had in fact done so.

4. [119]

   Counsel for the applicant acknowledged before this Court that he had not raised these issues when given the opportunity to do so at the conclusion of her Honour’s summing-up. As I understood it, it was counsel’s submission that leave should be granted pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (the rules) because her Honour’s direction had given rise to a miscarriage of justice.

Submissions of the Crown

1. [120]

   The Crown submitted that leave to rely upon this ground should be refused. The Crown emphasised the simple point that neither Marks nor Grant gave evidence that the applicant had complained of a shoulder injury and that the submission put by counsel to the jury had rendered it necessary for the trial judge to give the direction.

Consideration

1. [121]

   Rule 4.15 of the rules clearly applies to this aspect of ground 4 and is in the following terms:

2. [122]

   The following propositions regarding the operation of the predecessor to rule 4.15 (which was expressed in essentially identical terms) are settled:

3. [123]

   Contrary to the submission advanced before this Court by counsel for the applicant, there were no “notes” produced by any witness which supported the proposition that the applicant had complained about a shoulder injury. Moreover, the genesis of the necessity to direct the jury as her Honour did lay in two entirely inappropriate and misleading submissions which were put by counsel for the applicant to the jury.

4. [124]

   Counsel firstly put to the jury that the evidence of Marks was “not inconsistent” with the accused’s asserted complaint of a shoulder injury. Whilst the applicant had said (not in the course of his evidence in chief, but in cross-examination) that he had complained to Marks that his shoulder was “quite bad”, Marks gave no evidence whatsoever about the applicant making such a complaint. The proposition that the applicant had so complained was never put to Marks, or to Grant. Their evidence, at its highest, was that the applicant asked for a medical certificate for his “injuries” and was told that such a certificate could not be provided. The proposition that in this respect, the evidence of Marks was “not inconsistent” with that of the applicant was entirely misleading, a fact which appears to have been accepted by counsel, given his indication to her Honour that he would “fix it up.” However, far from “fixing it up”, counsel then put to the jury that the fact that the applicant had complained about a shoulder injury was “supported by… Christie Marks”. That proposition was even more misleading. It was in all of these circumstances that her Honour determined that the direction previously set out should be given.

5. [125]

   In light of the applicant’s evidence of complaint, counsel submitted that the second part of her Honour’s direction, namely that there was “no evidence that [the applicant] complained to anyone about a shoulder injury”, was incorrect. If the direction had been confined to that proposition and nothing more, counsel’s submission to this Court may have had some substance. However, the direction should not be parsed. It must be read as a whole. Adopting that approach, it is clear that her Honour was simply (and correctly) reiterating that Marks had not given the evidence which counsel for the applicant, in his misleading submissions to the jury, had effectively attributed to her.

6. [126]

   I am fortified in that conclusion by the fact that when given the opportunity to raise any issue at the conclusion of her Honour’s summing-up, counsel took no objection to the direction which was given.

7. [127]

   For all of these reasons, her Honour’s direction was entirely appropriate, and no miscarriage of justice has arisen.

8. [128]

   Leave to rely on this ground should be refused.

The procedure adopted at trial

1. [129]

   Each of the police officers gave their evidence in chief, at least in part, by reading their statements. Notwithstanding the fact that no issue was apparently raised by counsel for the applicant to this course being adopted at the trial, the following submission was put in counsel’s closing address to the jury: [160]

2. [130]

   Following the adjournment of the proceedings on that day, the Crown forwarded an email to the trial judge’s Associate in (inter alia) the following terms: [161]

3. [131]

   When the proceedings resumed the following day her Honour raised the Crown’s application for a direction, which resulted in the following exchange: [162]

4. [132]

   It is noteworthy that counsel for the applicant did not explain, in response to her Honour’s specific question, why it was that he had referred to the issue at all. In any event, it is clear that counsel acquiesced to a direction being given to the effect that the relevant legislation permitted the police to read their statements.

5. [133]

   However, when counsel resumed his final address, he proceeded to make a number of further references to the fact that the police had read their statements when giving evidence. To begin with, he said this: [163]

6. [134]

   Counsel then said: [164]

7. [135]

   Counsel went on to say: [165]

8. [136]

   Counsel then said: [166]

9. [137]

   Later, when dealing with the evidence of Humphries, counsel said: [167]

10. [138]

    Subsequently, counsel said: [168]

11. [139]

    A short time later, counsel put this submission: [169]

The direction of the trial judge

1. [140]

   In the course of her summing-up, the trial judge directed the jury in the following terms: [170]

2. [141]

   That direction having been given, counsel raised no issue about it when he was given the opportunity to do so. [171]

Submissions of the applicant

1. [142]

   Counsel for the applicant submitted that in putting the submissions that he did, he was doing no more than seeking to highlight the inconsistencies in the statements made by the police. He further submitted that:

2. [143]

   In circumstances where he did not raise any of these issues when given the opportunity to do so at the conclusion of her Honour’s summing-up, counsel accepted that rule 4.15 applied, but submitted that leave should be granted because her Honour’s direction gave rise to a miscarriage of justice.

Submissions of the Crown

1. [144]

   The Crown submitted that leave should not be granted to allow the applicant to rely on this ground of appeal. The Crown submitted that when the circumstances leading to the direction were viewed in their entirety, it was plain that the direction had become necessary due to the terms in which counsel had addressed the jury.

Consideration

1. [145]

   Section 33 of the Evidence Act 1995 (NSW) is in the following terms:

2. [146]

   There is no dispute that rule 4.15 applies to this ground. In my view, leave should be refused for the following reasons.

3. [147]

   The proposition advanced before this Court that a direction regarding the reading of statements was “unnecessary” is entirely at odds with the position taken by counsel for the applicant when the issue was first raised by the trial judge in response to the Crown’s correspondence. Counsel certainly did not suggest at that time that a direction was unnecessary. On the contrary, he specifically acquiesced to a direction being given to the effect that there is legislation which permits police to read their statements. It is no answer to say, as counsel sought to do in this Court, that at that time he was under the impression that any direction would be limited to what her Honour had indicated, and would not extend to directing the jury not to draw any adverse inference. What counsel put in those passages of his closing address that followed his exchange with the trial judge made it clear that he was asking the jury to draw an adverse inference from the fact that the police had read their statements. Those submissions rendered it necessary for her Honour to extend the direction beyond that which she had originally indicated. I am unable to accept that counsel’s forensic purpose in making the submissions was to highlight inconsistencies in the statements. If what counsel was seeking to do was limited to that, repeated (and disparaging) references to the fact that the statements had been read by the police were entirely unnecessary.

4. [148]

   It should also be noted that when the Crown’s correspondence was first raised, the trial judge had squarely asked counsel for the applicant why it was that he had referred to the issue at all. It is clear that in asking that question, her Honour was seeking counsel’s assistance to enable her to understand the effect of the submissions that were being put, so that she could appropriately direct the jury. Counsel did not respond to her Honour’s question. It is, to say the least, regrettable that the assistance sought by her Honour was not forthcoming. Her Honour did not misconstrue the submissions which had been put. Counsel’s submission to this Court that her Honour did so is, in the circumstances, quite unfair.

5. [149]

   Moreover, if counsel took the view that the direction had “misconstrued his submissions” he had the opportunity to raise that issue when her Honour called on him at the conclusion of her summing-up. It is telling that when given that opportunity, counsel said nothing. The only available conclusion to be drawn from all of those circumstances is that counsel saw no difficulty whatsoever with the terms in which the direction was given. There is absolutely no basis upon which to conclude that the direction gave rise to a miscarriage of justice.

6. [150]

   It should also be noted that the submission put by counsel to the jury that the police witnesses “chose” to read their statements was, yet again, entirely misleading. It completely overlooked the fact that, in accordance with accepted practice, any decision that the police should read their statements was one which would have been made by the Crown, not by the witnesses.

7. [151]

   For all of these reasons, leave to rely on this ground should be refused.

ORDERS

1. [152]

   I propose the following orders:

   1. (1)

      Leave in respect of grounds 1 and 2 is granted.

   2. (2)

      Leave in respect of ground 4 is refused.

   3. (3)

      The appeal is dismissed.

2. [153]

   LONERGAN J: I agree with Bellew J.

3. [154]

   IERACE J: I agree with Bellew J.