Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Scaysbrook v R [2022] NSWCCA 69 Hearing dates: 25 March 2022 Date of orders: 1 April 2022 Decision date: 01 April 2022 Before: Bellew J at [1] Lonergan J at [153] Ierace J at [154] Decision: (1) Leave in respect of grounds 1 and 2 is granted. (2) Leave in respect of ground 4 is refused. (3) The appeal is dismissed. Catchwords: CRIMINAL LAW – Application for leave to appeal against conviction – Where the applicant was found guilty by a jury of recklessly inflicting grievous bodily harm following an incident with police at a random breath testing station – Whether there was a failure on the part of the Crown to put its case to the applicant when cross-examining him – Consideration of the application of the rule in Browne v Dunn – Where the applicant was clearly on notice of the case against him – Whether the rule necessitated the Crown putting specific propositions in cross-examination – Whether it was open to the jury to find the Crown case established beyond reasonable doubt CRIMINAL LAW – Application for leave to appeal against conviction – Where grounds of appeal asserted that the trial judge had misdirected the jury in relation to a complaint of injury said to have been made by the applicant and in relation to the fact that the police witnesses had read their statements when giving evidence in chief – Where no issue had been taken by counsel at trial – Application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – Directions entirely appropriate in light of submissions which had been made by counsel in his closing address to the jury – Leave to rely on those grounds refused – Appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act NSW (2002) Cases Cited: Allied Pastoral Holdings Pty Limited v The Commissioner of Taxation [1983] 1 NSWLR 1 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Browne v Dunn (1893) 6 R 67 Greenhalgh v R [2017] NSWCCA 94 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pratten v R [2021] NSWCCA 25 R v Birks (1990) 19 NSWLR 677 Seymour v The Australian Broadcasting Commission (1977) 19 NSWLR 219 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Spencer v Bamber [2012] NSWCA 274 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 Category: Principal judgment Parties: Grant Thomas Scaysbrook – Applicant Regina – Respondent Representation: Counsel: J Cohen – Applicant C Curtis – Respondent Solicitors: G Elliott – Applicant C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2018/53188 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 08 October 2020 Before: Her Honour Judge Noman SC Judgment 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. 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. 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. 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. 1. 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). 2. 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. 3. 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. 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. 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. 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. THE EVIDENCE AT TRIAL Preliminary matters 1. In addressing the evidence at the trial three matters should be noted at the outset. 2. 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. 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. Thirdly, the following facts were agreed: [4] 1. On Friday 16 February 2018, at about 8pm Senior Constable Sean Fernandes, Senior Constable Ben Fillingham, Senior Constable Steven D'Rozario, and Senior Constable Tim Humphries set up a stationary breath testing for northbound traffic on the Forest Way, Belrose, NSW. At this time, the officers initiated blue and red flashing lights on their marked police patrol cars as well as message boards on those cars with the words "Random Breath Testing", in order to alert drivers to the testing location. A breath testing bus equipped with a breath testing machine was also set up at the location. 2. At approximately 8.30pm, [the applicant] was directed to stop for a breath test, which he did. [The applicant] was driving a grey Nissan Navara vehicle, Queensland registration 112TCS. [The applicant] was the sole occupant of the vehicle. 3. Senior Constable Sean Fernandes requested [the applicant] to present his driver's licence. He presented his NSW driver's licence. 4. Senior Constable Sean Fernandez [sic] requested [the applicant] to count "1 to 10" into a hand held alcolizer unit. 5. Following this, there were interactions between [the applicant] and the police officers referred to above. As a result of those interactions: (a) Senior Constable Tim Humphries suffered a severe intra articular distal radial fracture to his right wrist. (b) Senior Constable Steven D'Rozario suffered a kick to the groin, causing minimal fluid in the right hemiscrotal sac. 6. Senior Constables Humphries and D'Rozario sought and received medical attention after the above event. The evidence of the police officers 1. 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: I can't help you with that. [6] 1. 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: Fuck you. You can't take that. Give me my phone. I want to record this. [9] 1. Fernandes and Fillingham then took hold of the applicant's arms and walked him towards the nearby police bus, Fillingham saying: Hey, come on over to the bus. Don't resist. [10] 1. 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] Applicant: Hey hey, fuck you dogs. Fernandes: It's already on camera, you're already being recorded. Applicant: Just fuckin relax boys, hey. Fernandes: We're relaxed, you need to relax and you need to comply. Applicant: Hey don't talk fuckin shit to me, you fuckwit. Fernandes: Excuse me? Applicant: You fuckin heard me mate, you fuckin asked for it. Fernandes: Are the instructions we're giving you pretty simple? Applicant: (inaudible)… again aye, that's just fuckin rude. 1. 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. 2. 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] Fernandes: Do you need to be in handcuffs? Or are you going to comply? Applicant: I never have before and never will. Fillingham: What's the problem? Applicant: Why are you shaking? Fillingham: What's the problem? Applicant: I don't have a problem mate, are you alright? Fillingham: So why did you refuse a breath test? Applicant: Well I don't wanna blow. Fillingham: You don't wanna blow? Applicant: No. Fernandes: Like I told you, it's an offence you'll be charged. Applicant: Alright, fair enough. Fillingham: Alright you're gonna be searched, so put your hands up here. Applicant: Ok, no probs. Fillingham: Hands up there. 1. 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] Fillingham: Have you got anything you shouldn't have? Any weapons? Any drugs? Applicant: (Nil audible) Fillingham: What's your name? What's your name? Applicant: He's got my ID. Fillingham: I'm just asking your name mate. Applicant: Grant. Fillingham: Grant. We don't need to go through this like this mate, you understand? You're making this happen like this. We're not. Do you understand? It can go a lot differently, do you want it to go differently or not? Applicant: (Not audible) Fernandes: Has this happened before? Drink-driving? Fillingham: Yeah, you're right. Fillingham: Spread your legs. Humphries: Spread your legs mate. 1. 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] Fernandes: Is your rego and all that current on your car? Grant? Fernandes: You don't have to talk mate that's fine, but, there are things you have to do, you have to give a breath test and you have to do this, if you don't, like I said for the third time, it's an offence, you'll be charged. Applicant: (audible yawn) Fernandes: Ok, so. Applicant: I'm not going anywhere mate. Humphries: Huh? Applicant: I'm not going anywhere mate. Humphries: That's alright. I won't take your word for it. Fillingham: Grant, Grant, are we going to do this here, or are we going to do this at the police station, in custody. What are we going to do? Fernandes: It all depends on you mate, because we're happy to do it here, outside of custody and that, but. Fillingham: We can do it here, and then get it over with, and then you go, or we can go to Manly and you can sit in the cells, and we do it down there, what do you want to do? Applicant: (Not audible) Fernandes: Do it here, we'll do it here. Applicant: Say it again. Fillingham: Mate, listen, just answer the question, grow up and answer the question, I'm talking to you normally. Applicant: Shut the fuck up. Fillingham: Pardon? Applicant: Shut the fuck up. Fernandes: I already warned ya not to speak like that mate. Applicant: Fuck you. Fernandes: What've I done to you? Applicant: Took my fuckin smoke out of my fuckin mouth you fuckwit. 1. 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: Put your hand back up there. The applicant responded: Fuck you cunt. [18] 1. 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: Put your …. The applicant responded: Yeah or what? Oh oh no, here we go. [19] 1. Fernandes' account of what then ensued was as follows: [20] I [sic] Senior Constable Humphries had a hold of his left arm, and has brought his left arm towards [the applicant's] back. I saw [the applicant] tense his body and thrust his arm back forward towards his front. [The applicant's] tone had deepened and [his] voice was now louder. His facial expression tensed. He appeared to have tensed his body, [sic] indicated strongly to me that he was highly agitated. His demeanour had appeared to me to have changed to be highly aggressive. 1. At this point the following exchange was recorded: [21] Humphries: Don't resist me mate, don't resist. Applicant: Fuck you cunt, I'll resist as much as I fucking like, yeah fuck you cunt, what the fuck was that shit, fuck off you fuckwit, fuck you cunt. 1. Fernandes described what then occurred: [22] Due to [the applicant's] motions, I'd lost control of his left arm. I saw [the applicant] violently swing both of his arms with clenched fists as he turned before he violently lashed out toward Senior Constable Humphries. I saw [the applicant] swing his left arm towards Senior Constable Humphries, which appeared to me to make contact with his chest area. I observed Senior Constable Humphries fall onto the concrete behind him, enough force that I heard him make contact with the ground. As this occurred, I grabbed a hold of the collar of [the applicant's] shirt and his left shoulder from behind him. I saw Senior Constable Fillingham had a hold of his right arm. The physical struggle we were having with [the applicant] bought the three of us to the ground. Once we were on the ground I saw Senior Constable D'Rozario was on my left and had grabbed a hold of [the applicant's] left arm. I was sat on [the applicant's] back holding [the applicant] to the ground whilst Senior Constable Fillingham was attempting to bring his right arm towards his back. Senior Constable D'Rozario was bringing his left arm towards his back. [The applicant] was still violently thrashing his body and thrusting both of his arms, violently resisting our attempts to control him. During this, Senior Constable Fillingham was verbally directing [the applicant] to bring his arms out and directing Senior Constable D'Rozario to apply handcuffs. 1. 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] Suddenly without warning [the applicant] violently resisted my actions by swinging his arms in the air and attempted to break free from my hold. [Fillingham] and I attempted to restrain [the applicant] and, whilst doing so, found myself facing [the applicant] in front of the open door of the random breath testing bus. As I stepped in towards [the applicant] in another attempt to restrain him, he stepped towards me and pushed me with a large amount of force using both of his hands. I attempted to grab [the applicant's] arms as he pushed me, however the force was so large that I stumbled backwards, lost my footing and fell on to the footpath located about two to three metres behind me. As I fell to the ground, I placed my right hand out in an attempt to break my fall. As my right wrist made contact with the concrete path, I immediately felt severe pain to the area. Once I landed on the ground, my body continued to slide off the path and on to the adjoining grass area. In attempting to stand I placed my right wrist on the ground to assist myself up and immediately felt severe pain to my lower right arm. I then proceeded to roll on to my left, using my left arm to assist in standing. 1. Fillingham's evidence was to a similar effect: [24] I observed Senior Constable Fernandes take hold of the collar of [the applicant's] shirt from behind. I observed [the applicant] violently push Senior Constable Humphries with his left arm, causing him to fall onto the concrete footpath behind us. I heard Senior Constable Humphries yell out in pain as he made contact with the concrete. 1. 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] 2. In the course of these events occurring, the following exchange was recorded: [26] Applicant: (laughing) Fuck you, Do your duties boys, Do your duties, C'mon, Fuck off. Fillingham: Get those handcuffs on. Applicant: Go on, get your handcuffs out, oh no, fuck you dogs, fuck you, you got nothing, you got nothing boy, you fucking cunt, you're a funking cunt, they're not tight enough, nah nah not tight enough, tighten em up. D'Rozario: Ok mate. Fillingham: You ok? Humphries: Nup. Fillingham: Ok, let's get off him. Applicant: You fuckin cunt, you fuckin dogs (laughing). Fernandes: You're on the ground champ. Applicant: (laughing). Where did they teach you to fuckin do self defence, you fuckwit. Fernandes: I'll call for a cage. Applicant: What've I done wrong? What've I done wrong cunt, hey? What've I done wrong hey? You tell me? Fillingham: Let's get a truck. Fernandes: Request. 271. Female Operator: Yes, where are you at 271. Applicant: You tell me boy! You tell me fuck! Fillingham: Oi, relax Grant. Applicant: What the fuck have I done wrong cunt? Fuck you. (inaudible) Fillingham: Stop resisting, stop resisting. Fernandes: Thanks radio, we need a caged truck to Forest Way cross uh Ralston Ave in uh Belrose. There's one aggressive male, we've got him, uh got him in custody. Female Operator: Copy, sorry, just um the cross street again 271? Fernandes: Yeah, cross street was uh Ralston Avenue. 1. 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] Fillingham: Calm down. Applicant: Fuck you, fuckhead. Aw, you wait, you wait, I'm going to sixty minutes, you fuckin dog cunt, fuck you, Fuck you motherfucker. Fillingham: Stop resisting. Applicant: Fuck you, I don't have to fucking listen to you cunts now, you fucked up, yeah you're off the fuckin payroll cunt, you're all fucked, what've I done wrong cunt, I can't help ya, so what, I'm fuckin pissed cunt so you fuckin bash me, you fuckin dog. Is that what you gonna do? Fillingham: If you calm down, we'll get off you, if you calm down. Applicant: Is that what's you're gonna aye? Fillingham: Grant, calm down. Applicant: What the fuck, Grant (inaudible) cunt, you're a fuckin dog, how dare you fucking do this shit you cunt, you're in fucking serious shit cunt. Fernandes: No, not us, you. Applicant: Yeah yeah is that what you want (inaudible). 1. 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] Applicant: Hey, I fucking kicked you, I could've have kicked you in the head cunt but I didn't, get the fuck off me. Fillingham: As if that's happening mate. Applicant: (laughing) What the fuck was that? Fernandes: Yeah hold his legs down. Applicant: (laughing) what the fuck was that. Hey, you having fun cunt? You having fun? You know you're on camera? (laughing) hahahaha. Fernandes: Yeah. Applicant: (laughing) Yeah you are (inaudible). Humphries: Watch out for spit. Applicant: (laughing) Shut up cunt you're on camera. Humphries: Who's camera, what ours? Applicant: (laughing) Yeah that's right and you're fucked. Congratulations boys. D'Rozario: Watch his breath, watch his breathing. Fernandes: Yeah. Applicant: (laughing). Fernandes: Why can't you just keep calm mate. Applicant: (laughing) (inaudible)… these cunts are useless. Fernandes: You're gonna stand up buddy. Fillingham: You're gonna stand up and you're gonna walk to the truck, do you understand? Applicant: Shut the fuck up. Fillingham: Or you gonna be carried? Alright? Applicant: I don't wanna be carried. 1. 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] Fernandes: Kick your boots off buddy. Applicant: Shut the fuck up, how does that sound. Take my boots off cunt, hey, take my boots off. D'Rozario: Mate take your boots off or I'm gonna take your boots off. Applicant: You know there's zips on the sides, my hands are cuffed ya fuckwit, so don't fucking try your bullshit with me, ya fuckwits. Fillingham: Just stay calm. Applicant: Shut the fuck up! Fillingham: Calm down Grant. Applicant: Why would you fucking fuck with someone thats got you on camera Fillingham: Calm down mate. D'Rozario: Stop resisting. Applicant: Oh stop resisting, mate, go get a lamington and a cup of tea, fucks sake, stop resisting. D'Rozario: (inaudible). Applicant: Get a move on ya cunt! Hurry up. Fernandes: Buddy, calm, calm down it'll be a bit quicker. Applicant: Hurry up fuckhead (inaudible) fucking idiots (inaudible) You alright now mate? Fernandes: And the belt, belts off. 1. 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] 2. 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] Q. And this is all off your memory? A. Yes. Q. Senior Constable, are you sure you haven't edited out any relevant parts of the audio? A. Very sure, yes. 1. 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. 2. 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] Q. Do you agree that your understanding of the situation at the time was that it was not a volatile situation and it was not necessary to put him in handcuffs? A. Well, I had an inkling that he should, but I like to give the benefit to people that they don't, which is why I asked the question. Q. And he said it wasn't necessary? A. And I gave him the benefit of the doubt that he'd be alright. 1. He was then asked: [41] Q. Senior Constable, it's the case that generally speaking, if somebody was more aggressive or presenting a threat, you wouldn't take him to the random breath test bus, would you? You would take him back to the police station, is that so? A. I wouldn't put anyone that's volatile on the bus, but again, I like to give the benefit to people that they don't need to go to a police station, which is why I tried to stay there. 1. The following was then put to Fernandes: [42] Q. It's the case, isn't it, that what actually happened is that the accused – I'll have to be careful to describe his actions – had his hands up like that and that is both his hands were forward pressing against the RBT bus? Is that so? A. Bus, yes. Q. After about three minutes, one of his hands dropped and Senior Constable Fillingham pinned it back on the bus at that point in time, Sergeant Constable [sic] Humphries pushed his arm in what colloquially is known as a chicken wing position. What that means is that the arm was put behind his back and pushed in an upwards direction. Do you agree with that or not? A. No, I don't agree. Q. You told the jury and the Court a few moments ago that your recollection is in fact not so good of the events. Do you accept that you said that a moment ago? A. That was in regards to the sequence of which you said. Q. What do you mean by the sequence? A. That was what you were asking me before, the sequence of when his right hand dropped and when his left arm was trying to be controlled. Q. But you agree that you couldn't answer that question without reference to your statement. Do you agree with that, senior constable? A. That's right. Q. It's the fact, isn't it, that when Sergeant Constable [sic] Humphries put his arm behind his back, he in fact lifted it upwards. Do you agree with that? A. No. Q. Do you agree that you were actually in front of the accused or to the side and in front of the accused when Sergeant Constable [sic] Humphries was behind him and you wouldn't necessarily have seen what was going on? HER HONOUR: Sorry, Mr Cohen, in front of the accused. The accused is up on the bus, so where do we have the officer, between the accused and the bus? COHEN: I'll slow that one down, your Honour. I'll start that again. Q. In fact, what happened was that the accused had both of his hands on the bus like this, his arms were forward, and his arms were on the bus – – A. Yes. Q. – – and that was for about three minutes. A. Yeah, while he was being searched. Yeah. Q. There was some swearing. A. Yes. Q. I think he said, "Shut the fuck up" at that point in time. A. Amongst other things, yeah. Q. Sergeant Constable [sic] Fillingham pushed him [sic] hand back on the bus. A. Yes. Q. Sergeant Constable [sic] Humphries put his arm behind his back. A. He didn't make it to his back. I said he pulled it towards his back. Q. It's the fact, isn't it, that he did make it towards his back and his arm actually went up on his back. A. That's not what I recalled. Q. Your understanding at the time would have been that the accused was in pain. A. No. Q. Furthermore, one of the police officers was putting his knee in the back of the accused around his genital region from the back and shoving it forward. A. No. Q. Pressing hard against the genital region. A. No, that's not true. 1. 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] 2. 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] 3. 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. 4. 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] Q. There are a number of ways that a person can fall. Do you agree with that? A. Yes. Q. He might have fallen from a height? That is, standing upright to the ground, or not in that manner as in he might have been lower down? A. Yeah. Q. You didn't specify that. A. No. Q. That would have been an important detail also to give. A. Well, I was focussed on [the applicant]. Q. That's a matter that you don't know about. Is that right? A. Correct. Q. You don't say whether he loses his footing and trips, do you? A. No. Q. It's the case, isn't it, senior constable, that you've intentionally not given detail, haven't you? A. No. 1. 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. 2. In terms of the incident giving rise to count 1, the following was put to Humphries in cross-examination: [56] Q. Well, what I'm suggesting to you is that, in fact, when he said "'What the fuck was that?" He was in pain? A. Right. I don't recall him saying that. Q. And he turned around and pushed you with his right arm. A. No, I definitely recall both hands being there … Q. And you went on the grass. You actually fell backwards on the grass. A. No, the footpath. Q. And you got up straight away and as Senior Constable Fernandez [sic] and Senior Constable [sic] Fillingham were pushing, trying to bring [the applicant] down you actually grabbed the collar of [the applicant] so that you were facing the RBT bus. A. No. Q. And you pulled his head down to the ground. A. He, was already on the ground when I got up. Q. Well, what I'm suggesting to you is that's not what happened? A. Okay, well I disagree. Q. I understand that. And you pulled him by the collar and because Senior Constables Fernandez [sic] and Senior Constable Fillingham [sic] were pushing him, they were going forward and you were going backwards. In other words, they were pushing him in the direction of the concrete and the nature strip. A. He was already on the ground by then. Q. I understand that, you're disagreeing with what I'm saying but – A. Yes. Q. -- he went to the ground on the grass area. In other words, he voluntarily decided to fall – surrendered on the grass and that caused you to lose your footing and you went backwards. A. No. Q. And that's how you injured your wrist. A. No. Q. And that's why you've given so little detail about the fall. A. I wrote how it happened. Q. But you haven't specifically stated what part of your body hit the ground have you? A. My wrist, I wrote that. Q. Well, you said – sorry your wrist has hit the ground but what other than your wrist? A. The rest of my body. 1. 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. 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] Hurry the fuck up, you're searching too fucking slow, cunt. 1. In light of the applicant's behaviour, Dyason arranged for the attendance of an ambulance. [61] 2. Dyason's evidence was entirely unchallenged. The evidence of the Custody Manager 1. 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. 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. 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] I'm not signing anything. I want my lawyer. 1. Hrnjak was not cross-examined. The evidence of the paramedics 1. 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: Are you going to behave yourself while we assess you? The applicant replied: Okay. [68] 1. 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: 1. asked the applicant to bite down and then open his mouth wide, in order to assess his jaw and facial structure (which appeared to be intact); 2. felt the hematoma on top of the applicant's head; 3. felt the area surrounding the hematoma and could detect no other abnormality; and 4. assessed the applicant's pupils by shining a torch into his eyes, which indicated that both pupils were equal and reactive to torchlight. [70] 1. Marks was then asked: [71] Q. Did [the applicant] keep asking you if you could provide him with a medical certificate to show the injuries he had, and did you [sic] partner tell him several times that, 'we don't do this'. A. That's correct. 1. Marks said that the applicant then became aggressive. [72] 2. In answer to subsequent questions by trial judge, [73] Marks gave the following further evidence: Q. Do you want to tell me what the hematoma was it? A. I can't recall exactly what was, but a hematoma for us is just a bit of the bruising. So, on top of the head, a bit of a bump, and then we just feel around the edge of that. Q. So when you're saying a bit of a bump – – A. Yeah. Q. – – and bruising, was it in the hairline, if it's on the top of the head? A. Yes. Q. So could you see discolouration? A. Not discolouration. A bit more having a feel of the actual structure itself. Q. So you felt something you described as a bit of a bump. A. Yeah. 1. The cross-examination of Marks was limited to the following: [74] Q. You first observed with your eyes, is that right? You visually observed the hematoma. A. Have a look, and then we'll have a feel. Q. So you noticed it visually first. Is that so? A. No. I was told that that's what – there was a bump. Then have a feel, and feel the actual structure, and then have a look at the actual area itself. 1. 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. 2. 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] Q. And in your presence, did he say something like, I only want to speak to the ambos? A. That's correct. Q. And did he then say, "I have been assaulted by police. I want a medical report"? A. Yes. Q. Did he then allow Christie to assess a hematoma on his head? A. Correct. Q. And did hear – did you hear her say, "We do not provide medical certificates"? A. That's correct. 1. 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] 2. 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. 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. 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. 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: Q. Right, and what did you do at that point in time? A. I struck them both directly behind the chest with an open palm. Q. Right. And what did you do immediately after that? A. Well, I – while – what did I immediately do? Q. Yes. A. I said, "What the fuck was that?" Q. Yes. A. As – there's a couple of things there. Q. Yes. All right. And, did you – did you see what Senior Constable Humphries did? A. Yeah, certainly did. Q. And what did he do? A. He went straight on his arse. Q. Where abouts? A. On the grass. Q. How close from you was – to you was he when he went down? A. 1200 to 1300 mm, 1.2 – 1.3 metres. Q. Right. And did you see what he did afterwards? A. Yes. Q. And what did you do about that? What – what did you do at that time? A. I was still stationary. Q. Right. A. I knew that n they got back up, I was either going to be bashed, tasered or shot. Now, what I quickly did was do an assessment. These guys have five seconds to get up off the ground, and at that time Fernandes from the right attempted to grab my arm. And that – at that stage I realised that arm wasn't working very well at all. Q. Right. So, what did you do? A. I decided to go to ground, sir. Q. And how did you do that? A. I surrendered by putting my hands behind my back and trying to drop for the ground on the grass. Q. And what did you see that that point in time? A. What did I see at that point? Q. Yes. A. Fillingham and Humphries back on their feet. Q. Yes. A. Fernandes first. Getting his arms behind me, where I had my hands near my buttocks, and started to push. Fillingham then joined in. I'm looking up. Humphries is on his feet. It's physically impossible for me to go forward without being pushed into Humphries. I'm looking at him. The eyes in the man are pure rage. One step. Two steps. Humphries. Bang. Clamps down to the back of my collar. I'm now looking at his feet. They're pushing from behind. He takes one step backwards, and I believe, as he tried to step backwards again, the back of his heel has caught the footpath. And we all went to ground. 1. 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] 2. 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] Q. Why didn't you say, I'm in great pain, here? A. Why didn't I? Q. Yes. A. I wanted to remain silent, I gather. Q. You weren't silent, sir, you were very verbal, weren't you? A. Yeah. ….. Q. So you didn't want to remain silent, did you? A. No. Q. You had the opportunity – A. -- Well. Q. -- to say, I'm in pain, here. Didn't you? A. No, it was all very quick, sir. It was all very – it was all too fast. Q. Too fast? Too fast to say, I'm in pain, here? A. I made a – excuse me mate, I finished. I did make a – a verbal comment requesting that they calm down. Take me over to the bus. And, I made a physical gesture of surrender by going to ground. Q. And you didn't say, I can't breathe, did you? A. No. Q. And you didn't say, I'm in great pain, did you? A. No. 1. 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] Q. So sir, you must have been very severely injured, correct? A. I wasn't doing too good, no. Q. You would have been black and blue, correct? A. Yeah, I'd have bark off me, that's for sure. Q. And, sir, just in case I haven't put it to you, there was no blunt trauma or no blunt force by you to your head, correct? A. There was none? Q. Yes. A. No. That's incorrect. Not true. Q. No blunt force to your back, correct? A. Not true. Q. No blunt force to your legs? A. Not true. Q. No blunt force to your ribs? A. Not true. Q. Just so I've covered it, I put it that no police office ever struck you with first, boot, baton, or anything? A. I believe that to be not true. . 1. 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] 2. 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] Q. [The ambulance officers] they were there to look at you. A. Yes they were. Q. And you could have told them about all these injuries you claim to have had, couldn't you? A. Well, I did. Q. They said they observed a hematoma, correct? A. Correct. Q. That's it. Correct? You heard them give evidence here this morning didn't you? A. That's all they've mentioned, Yes. Q. You didn't say "I'm black and blue". A. No, I didn't, because I have long sleeves and long pants on. Q. You could have taken those off to show the medicos, or the paramedics? A. I'm not in the business of taking my clothes off in front of people, sir. Q. You could have at least rolled your sleeves up, couldn't you? A. Well, I don't remember saying I was hit to my arms. Q. You could have told the paramedics that you claimed you had been bashed, couldn't you? A. Well, with the other officers in the cell at the time, I didn't feel comfortable speaking about this, sir. Q. Who were the other officers that were in the cell with you at the time. A. Unknown. 1. As to any complaint having been made to Marks and Grant, he was later asked: [111] Q. Tell us what you said to the paramedics about your complaints. A. I – I said that my shoulder was quite bad. It had been hyper extended badly. There were – there were tender spots on my body but my main concern was the head. Q. You claim you told to which paramedic, both of them, about the injuries to your shoulder? A. And the police officers in the cell as well. Q. You definitely said that to the paramedics? A. Yes, sir. Q. You heard the ambulance officer, the paramedic, Ms Watt [sic], say that the bump on your head, "There was no discolouration, a bit – or having a feel of the actual structure itself. So you felt something you describe as a bit of a bump". "Yeah". That's it's [sic], wasn't it? A. Yes. Q. No mention of the injuries to your legs. A. No. Q. No mention of the injuries to your ribs. A. No, no. …… Q. Sir, I'll leave it at this: the only complaint you made to the paramedics was to your shoulder and your head. Correct? A. Yes. Only complaint – the major complaint at the time – was my shoulder and my head. The others were minor. 1. He was then asked: [112] Q. Do you say you told the paramedic about an injury to your shoulder? A. It was mentioned in the respect of, okay, what's hurting. Q. And, sir, I put it to you that you did not say anything about your shoulder to the paramedics. Do you accept that? A. Not true. Q. Not true, thank you. A. Not true. 1. 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] Q. You kicked Humphries – no, sorry, I withdraw that. You pushed Humphries to the chest causing him to fall over and suffer serious injury didn't you? A. I will answer on my day of judgment before the Crown and God, I would not lie to you sir. HER HONOUR: Do you want to answer the question. You were asked a question that you pushed Officer Humphries to the chest causing him to fall over. What's your answer? A. My answer is yes. Q. CROWN PROSECUTOR: You did push him to the chest deliberately. A. Yes. Q. Causing him to fall backwards and onto the ground. A. Yes. Q. Don't you call that an assault? A. In – no. No, it's defensive. That's not assault. That is not assault, sir. The application for a further direction in respect of count 1 1. 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] COHEN: One other matter I wish to raise is this. I don't see any part in the transcript where the accused was actually challenged on the issue of whether he turned his mind to actual bodily harm. He actually did give evidence on that issue and it wasn't challenged and your Honour has, in the summing-up, said the evidence of what his state of mind was is by inference, but this is a bit different because he actually gave specific evidence on the issue and he was not challenged. In other words, he gave evidence that he turned his mind to if he had done certain acts that may have resulted in serious harm and he didn't do those acts and that was the evidence. So, in my respectful submission, given what your Honour had said about the Browne v Dunn issues, I don't think it was available for the jury to actually consider the GBH (my emphasis). 1. 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] HER HONOUR: His case has never been a mistake about the push. To the extent that there has been a clear line, the Crown has run a case that your client pushed Senior Constable Humphries, causing him to fall and break his wrist. Your client denied that. He said any push was one from which he stood up without an injury. There is no suggestion of any confusion. So are you suggesting the jury could speculate and determinate that it may well have been the accused's accepted push that caused the injury when there is no evidence of that? COHEN: Yes, I take your Honour's point. However, it's possible that he broke his wrist on the grass. I mean, where he broken [sic] his wrist is – – HER HONOUR: Where is the evidence for that? COHEN: The evidence is from the accused that he pushed him and he went over. HER HONOUR: The accused gives a different scenario that he does not in any way account for the injury. That's his case. The Crown has a different case. There is no other scenario floating around. Are you saying that there is somewhere in the evidence that it may well have been your client's push that did cause the break – – COHEN: No, I'm not saying that. HER HONOUR: – – on the defence case? COHEN: What I'm saying is that there doesn't have to be that fine line. On either case there's a push. Whether it's the Crown case the defence case there was a push and then he went to the ground, whichever the case, so it still did need to be put to him. Even so, your Honour, putting that aside, even if we take away this delineation, it needed to be put to him that when he turned his mind to ABH on the Crown's case and the facts and circumstances needed to be put and they weren't. So even putting aside this issue of delineating the two matters, it still needed to be put to him, your Honour, because whatever the case is, he has said, "At no time did I turn my mind to the possibility of ABH and going into that act" (my emphasis). 1. 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] 2. After further exchanges with counsel, her Honour declined to give the jury any further direction. [119] THE GROUNDS OF APPEAL Ground 1 – The verdict was unsafe and unsound Ground 2 – The verdict was not open on the evidence Ground 3 – It was not open to the jury to convict on the evidence 1. These grounds may be conveniently dealt with together. 2. 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. 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. 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. 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. 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. 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. 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. 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. 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: …But the question for an appellate court is whether it was in open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt (emphasis in original). 1. In Pell v The Queen, [127] the Court said (in reference to that passage from Libke): [128] …[T]o say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M. 1. 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. 2. The applicant essentially advanced three propositions in support of this ground, namely that: 1. the Crown failed to properly put its case to the applicant on the issue of recklessness in the course of cross-examination; 2. in the absence of doing so the jury were bound to accept the applicant's account of the incident and find him not guilty; and 3. it was not otherwise open to the jury to convict the applicant because his account of events was not inconsistent with that of the police. 1. 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] Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which she has not had an opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted (my emphasis). 1. Lord Halsbury agreed with Lord Herschell. [133] 2. 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. 3. For example, in Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [134] Hunt J (as his Honour then was) said the following: I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings (my emphasis). 1. 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] It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence.…… The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious (my emphasis). 1. In Seymour v The Australian Broadcasting Commission [136] Mahoney JA said: Browne v Dunn provides an illustration of one of the ways in which a trial may miscarry. Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, as was there decided, in such a case a party who has not cross- examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted. But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption: ibid at 71 per Lord Herschell LC. It may be that the witness's evidence is fanciful or such as not to warrant cross-examination: ibid at 79 per Lord Morris; or that cross- examination is foregone for other adequate reasons, for example, delicacy: see Phipson on Evidence, 12th ed, (1976) par 1543 at 618-619 and Halsbury's Laws of England 4th ed, vol 17, par 278 at 194. Similarly, failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell (at 71). The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter (my emphasis in each case). 1. 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. 2. In my view, bearing these principles in mind, grounds 1 and 2 are not made out for a number of reasons. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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". 9. 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. 10. 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. 11. 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. 12. 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. Although pleaded as a single ground, ground 4 encompasses two separate and distinct complaints which should be dealt with individually. THE ASSERTED MISDIRECTION AS TO COMPLAINT OF A SHOULDER INJURY Defence counsel's closing address 1. 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] So I note that injuries is plural. That's not inconsistent with what the accused said. He said, "I was complaining about" – that's not at all inconsistent with what the accused said. I mean, he's asking for a medical certificate. He's a concreter and it might have been unrealistic in the circumstances, but it's quite conceivable that somebody might want a medical certificate to have some time off work and it's probably more likely than not – although perhaps it's a matter you can take into consideration though it's not in evidence before you but you might think it's a matter of common sense that people do take time off work for shoulder injuries (my emphasis). 1. 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] HER HONOUR: There is also the aspect you went into of the paramedic evidence and it's a matter of common sense in asking for a medical certificate that people ask for those when they have a shoulder injury. I think that may they well have been inviting some speculation where there is no evidence. COHEN: What I was saying is, it supports his account. I mean, it supports – – HER HONOUR: How does it support his account? I'm just asking you about the evidence. COHEN: Your Honour, he went a bit further. What the witness said is that he complained of injuries and asked for a medical certificate. So it's not simply he asked for a medical certificate but he complained of injuries. That was my understanding at p 174. I accept what your Honour says about the transcript stuff "Did the patient keep asking you if you could provide him with a medical certificate to show the injuries he had and did you [sic] partner tell him several times, 'We don't do this?" HER HONOUR: What you addressed the jury on was to the effect that it was quite conceivable that people take time off work and it's common sense they take time off work for shoulder injuries. COHEN: I think it is, your Honour. I've had some experience in personal injury in this area, not that – I would have thought it was but I'm hoping not to simply limit it – it supports what he says and to limit it to that. HER HONOUR: Your client gave evidence. If this was going to be something he sought to rely upon, if there was an evidentiary basis that the reason he asked for a medical certificate was because he had a shoulder injury and he wanted to take time off work for it, then that may provide some groundwork for the submission that you've made to the jury, but at the moment the evidence is one injury. There is a reference to him asking for a medical certificate for injuries – – COHEN: Yes. HER HONOUR: – – but I think it's quite a big jump to be asking the jury to speculate that by asking for a medical certificate it supports that he had a shoulder injury. COHEN: If your Honour is of that view I'll fix it up myself. Thank you. HER HONOUR: I'm trying to engage. Do you understand the problem? I'm taking you to – – COHEN: I would say it supports his evidence. It was suggested by the Crown that he simply hadn't complained about. I can't remember the effect of what was said yesterday but it was a very vehement attack on the accused in relation to, in my view, matters that were not really relevant to the case so – – HER HONOUR: Having a shoulder injury – – COHEN: Well, it is – – HER HONOUR: – – or not would be something of some relevance if he had a shoulder injury. COHEN: Of course, but what I'm saying is, it was suggested to him that he made no complaint of that sort. There's evidence he made complaint of injuries. It's not inconsistent with his account. That's all I was really saying. I take your Honour's point about the medical certificate and that it's speculating about that it's common knowledge. That was probably unnecessary but if your Honour feels it's problematic I accept that and I'm happy to – I'm not happy to retract it but I will retract it if your Honour is of the view that is problematic. I accept what your Honour says about Senior Constable Fernandes. I thought I was within my rights to say that but – – … HER HONOUR: it has a different impact if I correct it, which is why I'm raising it with you – – COHEN: Yes. HER HONOUR: – – but also I interrupted you because it is difficult for the jury maintain concentration for a long time when somebody is addressing. It was getting close to the time but I also wanted to ensure you reflect upon what else you are saying so that it doesn't then require further correction. So please don't invite the jury to speculate on things of which there is no evidentiary foundation. COHEN: No, I don't do that. I'll be very careful about that. I accept what your Honour says. No, I accept what your Honour says. I won't do that. I'll be very careful. 1. When he resumed his address to the jury, counsel said the following: [150] …It was suggested to the accused that somehow he didn't complain about injuries. I've taken you to the relevant part of the transcript. That's not the case. He says that he wanted a work certificate for his injuries. I think I said something like, "Well, you can use that to take" – "Well, it's common sense that people might complain to the doctor and might get a work injury certificate for a shoulder injury". You don't need to take that into consideration about whether he complained about a – his evidence was that he complained about a shoulder injury. That is supported by the particular witness, Christie Marks. It's corroborated by her. He complained about injuries and it's corroborated. You don't need to take into consideration anything. He said he complained about his shoulder and I said to you that it's common knowledge that people complain about shoulders when they want to get a work certificate or something like that. That's something you don't need to take into account. That's not a necessary component of the defence's case at all. You don't need to speculate about why he would have asked for it, beyond the fact that he had injuries and he asked for a certificate (my emphasis in each case). 1. 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] HER HONOUR: Mr Cohen, I think you said that the accused is supported that he complained about the shoulder injury and that support comes from Paramedic Marks. COHEN: I think it's corroborated. HER HONOUR: Yes, where is that in the evidence? Could you please take me to that? COHEN: I didn't mean that – no, she doesn't say that he complained about the shoulder. I didn't – – HER HONOUR: I thought you said that her evidence supported him that he complained about a shoulder injury. That's what I understood you were saying. COHEN: I thought it did. He complained about injury. That's consistent with it. Is that not – – HER HONOUR: You leave it the way you want, Mr Cohen. I will deal with it in my summing-up. COHEN: I'm happy to sort it out. HER HONOUR: That's all right . I'm not going to argue the point with you. COHEN: No, I wish to correct – – HER HONOUR: That's all right . You place it how you want to. Thank you, I'll adjourn. COHEN: … Secondly, I just want to clarify if I said "corroborated" what I meant to say was "not inconsistent". I do wish to – – HER HONOUR: You can say what you want, Mr Cohen, and I'll say what I want in my summing-up. COHEN: If your Honour can tell me what vice was I'll accept it and I'll correct it. HER HONOUR: I did before lunch and you started to argue with me on it – – COHEN: I apologise HER HONOUR: – – which is why I said there is no point us arguing on it. COHEN: No, I'm not going to argue. I was a bit tired. I'm just simply asking your Honour and I will correct it. I don't intend to argue with your Honour. I'd just like to correct it so that that's not an issue. HER HONOUR: As I said before lunch, my understanding of what you said was the accused had support from the paramedic, Ms Marks, in relation to him, complaining about a shoulder injury. I did not write down that you said "corroborate". I wrote down that you said "support". The issue isn't about which word was used. COHEN: What was the thrust of it? Was I suggesting that she agreed or something that on her – – HER HONOUR: Provided support for the accused was how I understood it. COHEN: I see, right, physical support? HER HONOUR: No, physical support, her evidenced [sic] the accused. COHEN: It's not inconsistent with the accused. HER HONOUR: Does your instructing solicitor have a note of what you said? COHEN: Your Honour, can I just say this? If I say that it's not inconsistent with the accused evidence, is that satisfactory to your Honour? I don't want this to be an issue, that's why I'm running it past your Honour. Is your Honour satisfied if I – what I meant to say – – HER HONOUR: There is no support from Paramedic Marks that your client complained about having a shoulder injury. On the evidence there is no support. Do you challenge that? COHEN: No, I say it's not inconsistent. That's what I meant to say. HER HONOUR: What does that mean? That implies some consistency there is no complaint. COHEN: I don't know if I agree. HER HONOUR: I'm not arguing the point with you. You say what you want to say Mr Cohen. I have brought it to your attention. I can make it no clearer. COHEN: Okay. I'm just working out how to – – HER HONOUR: I have brought to your attention – – COHEN: I understand that. I'm just trying to work – – HER HONOUR: – – a number of matters. I'm not sure that you have actually dealt with them in the manner I thought. It really is becoming redundant for me to raise these matters. COHEN: Can your Honour just tell me what – does your Honour have any issues with the other retractions? HER HONOUR: Mr Cohen, yes, I do. COHEN: Can you tell me what those issues are? I'll just get straight to the point and I'll just tell the jury I retract those comments. HER HONOUR: That's where I thought we had a discussion before but it doesn't seem to quite come out as I had understood it would come out. I will be saying something about shoulder injury because of the submission you have made. I will be saying something also about the medical certificate shoulder injury, that there is no evidence supporting this. They're the two topics both on the shoulder injury. COHEN: All right. 1. Upon the resumption of his closing address, counsel made no further reference to the issue. The direction of the trial judge 1. In the course of her summing-up, the trial judge said the following: [152] …The police organised paramedics to attend the police station. The only injury observed to the accused was a lump to his head. The accused said he was kicked to the head by Senior Constable Humphries and the officer denied this. The accused relies on this injury to support his account that he was assaulted. Mr Cohen referred to the accused asking the paramedics from medical certificate. He said it was a matter of common sense that people ask for medical certificates and that they take off time for the shoulder injuries. There is no evidence supporting that this occurred in this case. The accused did not give this evidence. You are not to speculate on matters of which there is no evidence. Mr Cohen also said that the accused complained about a shoulder injury to paramedics to Paramedic Marks. He submitted this provided support for the accused. Officer Marks did not give this evidence and there is no evidence of the accused complained to anyone about a shoulder injury. There being no evidence supporting these submission [sic], you should disregard them. It is a matter for you to consider the evidence and it is a matter for you to determine whether the evidence does provide the support (my emphasis). 1. The summing-up of the trial judge concluded a short time later at which point the transcript records the following: [153] HER HONOUR: Mr Crown, is there anything else arising? CROWN PROSECUTOR: No, your Honour, thank you very much. HER HONOUR: Mr Cohen, is there anything arising? COHEN: No, your Honour, thanks. HER HONOUR: Thank you. Submissions of the applicant 1. 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. 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. 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. 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. 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. Rule 4.15 of the rules clearly applies to this aspect of ground 4 and is in the following terms: 4.15 Exclusion of certain matters as grounds for appeal without leave No direction, omission to direct, or decision as to the admission or rejection of evidence, given by a trial judge may, without the leave of the Court, be allowed as a ground for appeal or an application for leave unless objection was taken at the trial to the direction, omission or decision by the appellant or applicant for leave. 1. The following propositions regarding the operation of the predecessor to rule 4.15 (which was expressed in essentially identical terms) are settled: 1. the discretion to grant leave will be exercised in an applicant's favour where there has been a miscarriage of justice, such that the applicant has lost a real chance of acquittal; [156] 2. if a necessary element of a fair trial has been overlooked, leave should generally be granted; [157] 3. in adversarial litigation such as a criminal trial, and subject to carefully controlled qualifications, parties are bound by the conduct of their counsel who exercise a wide discretion in deciding (inter alia) what issues to contest; [158] and 4. the fact that no objection is taken to a particular direction is, in most cases, cogent evidence that counsel, absorbed in the atmosphere of the trial, saw no injustice or error in what was said or done. [159] 1. 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. 2. 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. 3. 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. 4. 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. 5. For all of these reasons, her Honour's direction was entirely appropriate, and no miscarriage of justice has arisen. 6. Leave to rely on this ground should be refused. THE ASSERTED MISDIRECTION REGARDING THE READING OF STATEMENTS BY THE POLICE The procedure adopted at trial 1. 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] I understand the jury has the transcript of the evidence before you right now so I'm going to take the jury through various parts of the evidence and also the transcript, but I'm going to say something about how the police chose to give their evidence. You may think that that's acceptable that the police simply read out statements and certainly they're entitled to do that. The police are allowed to read out statements in the witness box. That's because what happens with police, and it might be common sense, is that police investigate matters all the time and when they investigate those matters they would make a statement and invariably they would do a lot of matters at a time and make a lot of statements. So it's understandable that police are entitled to read those statements in the witness box because asking them to do otherwise would be quite difficult, given that they are essentially what we call professional witnesses. However, in this particular instance, the police were direct witnesses. The complainants, Senior Constable Humphries is a police officer and Senior Constable D'Rozario is a police officer and the other two important witnesses, Senior Constable Fillingham and Senior Constable – sorry, I should start that again. So they were witnesses to the event and yet they got in the witness box and simply read their statements and when I take you to those statements in due course it will become apparent that there are some real problems with the Crown case and, in fact, they can't prove their case beyond reasonable doubt, the reason being is that there are some significant ambiguities in their statements (my emphasis in each case). 1. 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] … [I]n view of the comments made by Mr Cohen about Police making lots of statements and generally being allowed to read them, the Crown would seek a Direction in accordance with Section 33 of the evidence Act. Something like: Comment was made about Police reading their statements. The law provides Police may only read their statements provided three pre-conditions are met. They are that the statement was made by the Police Officer at the time of or soon after the occurrence of the events to which it refers, and the police officer signed the statement when it was made and a copy of the statement has been given to the accused or his lawyers a reasonable time before the hearing of the evidence for the prosecution. 1. When the proceedings resumed the following day her Honour raised the Crown's application for a direction, which resulted in the following exchange: [162] COHEN: I don't think it's a relevant direction, your Honour. I'm not suggesting they're not entitled to. What I'm saying is – – HER HONOUR: Why did you refer to it? COHEN: I'll be referred [sic] to a lot of things. I'll be referring to quite significant things. HER HONOUR: I propose to say something, that there is legislation that provides that police can do so. COHEN: Okay, that's fine. 1. 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. 2. 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] They chose to read out their statements and they're absolutely entitled to do that. There's legislation that says that police are entitled to get in the witness box and read out their statements and I'll say [sic] about that in a moment but their statements say different things (my emphasis). 1. Counsel then said: [164] …You would think in the circumstances of this case – and, as I said before, it's absolutely right the police are entitled to just read out a statement – given the discrepancies between their accounts, you would think that there would be some attempt to provide you, the jury, some sort of clarity on that. They could have been asked questions in the witness box. It's not my job to do that. It's the Crown's job. That is the Crown's job. You see, the problem is how do you determine what happened, let alone whether the accused at the time when he's alleged to have done whatever it is he's alleged to have done had the relevant state of mind? (my emphasis). 1. Counsel went on to say: [165] When you read the statements, is it expected that you analyse their statements and somehow come up with an average or work out what happened or deduce from that what the accused was thinking? That's not a task that you can properly do and if you can't do it that's fatal to the Crown's case in relation to GBH and, as I said, there are some ambiguities in the statements and I'll go through them in a moment, and there are often ambiguities in statements and giving evidence can be a good opportunity to clarify those ambiguities. That didn't happen (my emphasis) 1. Counsel then said: [166] If one goes through the various statements there seem to be a lot of gaps in their statements where evidence could have been adduced in relation to that and, again, the defence says its completely unacceptable. You simply cannot properly work with that evidence because it's making you, as the jury, speculate and that's not your job (my emphasis). 1. Later, when dealing with the evidence of Humphries, counsel said: [167] Again, they didn't put him in the box and ask questions and, of course, they don't have to. He's entitled to read his statement. That's what the legislation says, that police can sit down and read their statements but that doesn't make it any more satisfactory for you, the jury, when it comes time to what he was actually was saying and I'm going to take you to his statement in due course in more detail and go to the really specific events. What we're submitting is, when you look at all those statements, the Crown wants you to convict on guesswork. That's what the Crown wants you to do. The Crown wants you to essentially look at the statements and just convict on guesswork and you just can't do that (my emphasis). 1. Subsequently, counsel said: [168] The Crown case in relation to the assault occasioning GBH or recklessly assault occasioning GBH basically relied on you to interpret a bunch of pieces of papers which you simply can't do (my emphasis). 1. A short time later, counsel put this submission: [169] Members of the jury, when you look at all of this evidence in its totality, the Crown is asking you to sit in judgment of the accused and the bottom line is the case that they've presented you with is simply some rubbish pieces of paper, a few statements that are really quite unclear and ambiguous (my emphasis). The direction of the trial judge 1. In the course of her summing-up, the trial judge directed the jury in the following terms: [170] The law specifically provides that police officers may rely upon an official statement made close in time to the event when they give their evidence. You should not draw any adverse inference from the fact that each gave evidence in the manner specifically provided. 1. 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. 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: 1. the direction given by the trial judge had "misconstrued" the nature of the submissions which he had put to the jury; 2. the direction was wrong in law because s 33 of the Evidence Act 1995 (NSW) made no reference to the jury not drawing an adverse inference from the fact that statements were read; 3. there was "no authority" to support a direction in the terms of that which was given; and 4. the second sentence of the direction was "unnecessary"; 1. 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. 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. Section 33 of the Evidence Act 1995 (NSW) is in the following terms: Evidence given by police officers (1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. (2) Evidence may not be so given unless-- (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and (b) the police officer signed the statement when it was made, and (c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer. 1. There is no dispute that rule 4.15 applies to this ground. In my view, leave should be refused for the following reasons. 2. 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. 3. 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. 4. 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. 5. 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. 6. For all of these reasons, leave to rely on this ground should be refused. ORDERS 1. I propose the following orders: 1. Leave in respect of grounds 1 and 2 is granted. 2. Leave in respect of ground 4 is refused. 3. The appeal is dismissed. 1. LONERGAN J: I agree with Bellew J. 2. IERACE J: I agree with Bellew J. ********** Endnotes 1. Count 2 was pleaded as an alternative to count 1. 2. Exhibit E1. 3. Exhibit E2. 4. Exhibit A; AB 405 – AB 406. 5. AB 37.21 – AB 37.46. 6. AB 37.39. 7. AB 37.48 – AB 38.2; AB 90.24 – AB 90.35. 8. AB 38.13. 9. AB 38.12 – AB 38.14; AB 90.43 – AB 90.47. 10. AB 38.15 – AB 38.18. 11. AB 423. 12. AB 38.31 – AB 38.33. 13. AB 423 – AB 424. 14. AB 38.45 – AB 38.48. 15. Exhibit E1; AB 424. 16. AB 39.12 – AB 39.17. 17. Exhibit E2; AB 425 – AB 426. 18. Exhibit E2; AB 426. 19. Exhibit E2; AB 426. 20. AB 40.2 – AB 40.8. 21. Exhibit E2; AB 426. 22. AB 40.17 – 40.40. 23. AB 135.23 – AB 135.44. 24. AB 93.19 – AB 93.23. 25. AB 124.35 – AB 124.39. 26. Exhibit E2; AB 426- AB 427. 27. AB 41.11 – AB 41.12. 28. Exhibit E2; AB 427. 29. AB 41.25 – AB 41.30. 30. AB 41.32 – AB 41.34. 31. Exhibit E2; AB 427 – AB 428. 32. AB 42.3 – AB 42.8. 33. Exhibit E2; AB 428 – AB 429. 34. AB 42.10 – AB 42.14. 35. AB 42.14 – AB 42.16. 36. AB 54.39 – AB 54.44. 37. AB 71.21 – AB 71.27. 38. AB 71.21 – AB 71.24. 39. AB 56.6 – AB 56.15. 40. AB 56.21 – AB 56.27. 41. AB 56.39 – AB 56.45. 42. AB 62.17 – AB 63.38. 43. AB 64.26 – AB 64.29. 44. AB 65.19 – AB 65.21. 45. AB 65.46 – AB 65.50. 46. AB 67.17 – AB 67.23. 47. AB 67.25 – AB 67.28. 48. AB 69.17 – AB 70.4. 49. AB 70.28 – AB 70.30. 50. AB 113.33 – AB 113.34. 51. AB 113.45 – AB 114.10. 52. AB 114.17 – AB 114.39. 53. AB 71.29 – AB 71.31; AB 72.9 – AB 72.11. 54. AB 120.50-121.4 . 55. AB 165.5 – AB 165.7. 56. AB 162.31 – AB 163.33. 57. AB 168.5 – AB 168.25. 58. AB 175.45 – AB 175.47. 59. AB 176.5 – AB 176.11; AB 181.8 – AB 181.19. 60. AB175.50. 61. AB 176.13 – AB 176.15. 62. AB 183.22 – AB 183.23. 63. AB 183.40 – AB 183.45 64. AB 184.17 – AB 184.40. 65. AB 184.44 – AB 185.2 66. AB 207.5 – AB 207.20. 67. AB 207.22 – AB 207.25. 68. AB 207.27 – AB 207.29. 69. AB 207.31 – AB 207.37. 70. AB 207.35 – AB 207.49. 71. AB 208.1 – AB 208.4. 72. AB 208.6. 73. AB 208.21 – AB 208.36. 74. AB 208.42 –208.48. 75. AB 209.37 – AB 209.39. 76. AB 209.41 – AB 209.43. 77. AB 209.48 – AB 210.11. 78. AB 210.21 – AB 210.43. 79. AB 218.47 – AB 219.2. 80. AB 90.34 – AB 90.35. 81. AB 38.12. 82. See that part of the recording extracted at [13] above. 83. AB 224.2 84. AB 225.31. 85. AB 225.34 – AB 225.35. 86. AB 225.20 – AB 225.24. 87. AB 225.46 – AB 226.1.. 88. AB 226 .16. 89. AB.226.18 – AB 226.21. 90. AB 228.35. 91. AB 229.7. 92. AB 229.43. 93. AB 230.32 – AB 230.39. 94. AB 233.17-233.23. 95. AB 236.36. 96. AB 236.39 – AB 237.19. 97. See for example AB 239.11 – AB 239.12; AB 239.27 – AB 239.40; AB 240.11 – AB 240.12. 98. AB 240.37. 99. AB 241.39 – AB241.43. 100. AB 247.9 – AB 247.11. 101. AB 247.38 – AB 247.49. 102. AB 248.2. 103. AB 248.4 – AB 248. 28. 104. AB 240.42 – AB 241.5. 105. AB 243.45. 106. AB 250.14 – AB 250.24; AB 251.6 – AB 251.7. 107. AB 251.50. 108. AB 253.39 – AB 253.41. 109. AB 254.5 – AB 254.7. 110. AB 254.20 – AB 254.49. 111. AB 284.23 – AB 285.14. 112. AB 286.17 – AB 286.25. 113. AB 255.8 – AB 255.10. 114. AB 244.17 – AB 244.38. 115. T 23.35 – T 24.9 of 8 October 2020. 116. T 24.3 – T 24.5 of 8 October 2020. 117. T 25.2 – T 25.31 of 8 October 2020. 118. T 25.8 of 8 October 2020. 119. T 27.9 of 8 October 2020. 120. Applicant's written submissions at 10(c). 121. Applicant's written submissions at 10(a). 122. (1990) 19 NSWLR 677. 123. Applicant's written submissions at 10(g). 124. Applicant's written submissions at 10(h). 125. See M v The Queen (1994) 181 CLR 487; [1994] HCA 63, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. 126. (2007) 230 CLR 559 ; [2007] HCA 30 at 113. 127. (2020) 268 CLR 123; [2020] HCA 12 at [45] per Kiefel CJ, Bell,Gageler, Keane, Nettle, Gordon and Edelman JJ. 128. At [45]. 129. M at [7]; MFA at [49]. 130. The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. 131. (1893) 6 R 67. 132. At p 70 - 71. 133. At p 76. 134. [1983] 1 NSWLR 1 at 26. 135. At 686. 136. (1977) 19 NSWLR 219 at 236. 137. [2009] NSWCA 234; (2009) 261 ALR 382 at [105]. 138. [2012] NSWCA 274 at 134 per Campbell JA, Basten and Macfarlan JJA agreeing). 139. At [89] above. 140. At [94] above. 141. At [90] above. 142. At [73] above. 143. At [72] above. 144. AB 229.43. 145. At [66] above. 146. At [67] above. 147. AB 208.1 – AB 208.4. 148. AB 365. 149. AB 374 – AB 376. 150. AB 388. 151. AB 392 – AB 394. 152. AB 443 – AB 444. 153. AB 447. 154. At [114] above. 155. Applicant's written submissions at [13]. 156. Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32] per Bellew J, Hoeben CJ at CL and Hidden AJ agreeing, cited in Pratten v R [2021] NSWCCA 251 at [95]. 157. Trevascus at [32] cited in Pratten at [95]. 158. Greenhalgh v R [2017] NSWCCA 94 at [17]. 159. Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]. 160. AB 347. 161. MFI 20; AB 454. 162. AB 361. 163. AB 367. 164. AB 367. 165. AB 369. 166. AB 370. 167. AB 383. 168. AB 401. 169. AB 401. 170. AB 435. 171. AB 447. Amendments 01 April 2022 - p.2 - G Curtis should read C Curtis DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2022