REGINA v. HOGAN [2001] NSWCCA 292

New South Wales Court of Criminal Appeal

CITATION : REGINA v. HOGAN [2001] NSWCCA 292 FILE NUMBER(S) : CCA No. 60256 of 2000 HEARING DATE(S) : Thursday 17 May 2001 JUDGMENT DATE : 3 August 2001

PARTIES : REGINA v. HOGAN, Garry James JUDGMENT OF : Giles JA at 1; Greg James J at 9; Badgery-Parker AJ at 101

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0409 LOWER COURT JUDICIAL Nield, DCJ. OFFICER :

COUNSEL : Crown: G.E. Smith App: P.R. Boulten SOLICITORS : Crown: S.E. O'Connor App: S.J. Humpreys CATCHWORDS : Criminal law - appeal - leave to cross-examine unfavourable witness - matters to be considered on grant of leave - extent of leave - ambit of cross-examination - prejudice - risk of shifting focus of trial - importance of adequate directions LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Stanoevski [2001] HCA 4 Lozano (CCA, unreported 10 June 1997) CASES CITED: GAC (CCA, unreported 1 April 1997) Fowler [2000] NSWCCA 142 Adam (1999) 47 NSWLR 267 DECISION : Appeal allowed; new trial ordered

IN THE COURT OF CRIMINAL APPEAL

No. 60256 of 2000 CORAM: GILES, JA. GREG JAMES, J. BADGERY-PARKER, AJ.

FRIDAY 3 AUGUST 2001

REGINA v. GARRY JAMES HOGAN

JUDGMENT

1 GILES, JA: The reasons of Greg James, J., which I have had the advantage of reading in draft, describe in detail the material aspects of the course of the trial. 2 It is clear that in giving the prosecution leave to question Rachel Golby as though it were cross-examining, the trial judge did not have regard to the matters which, by s.192(2) of the Evidence Act 1995, he was to take into account. Nor did his Honour give attention to what Rachel Golby should be permitted to be questioned about, either by regard to the three categories of questioning in s.38(1)(a), (b) and (c) or by regard to the further category of questioning about matters relevant only to credibility in s.38(3). It is appropriate to say that neither the prosecution nor the defence appears to have reminded his Honour of the need to take into account the matters in s.192(2) and to consider the extent and nature of the permitted questioning. 3 As what thereafter occurred demonstrates, some of the matters in s.192(2) were relevant to the exercise of the discretions under s.38(1) and (3). Although concerned with cross-examination on character rather than cross-examination of a party's own witness, on what was said in Stanoevski v. The Queen [2001] HCA 4 the trial judge's exercise of discretion miscarried for failure to have regard to the s.192(2) matters. Material passages from the judgments in that case are set out in the judgment of Greg James, J. The exercise of discretion also miscarried, in my view, for the associated (perhaps consequential) failure to give attention to what Rachel Golby should be permitted to be questioned about, and again what thereafter occurred demonstrates the need for such attention. In a critical respect the appellant's trial was therefore contrary to law. 4 It cannot realistically be doubted that, had there been regard to the s.192(2) matters, leave would have been given to question Rachel Golby as if cross-examining. But the leave would by no means have permitted the unfettered and wide-ranging questioning which was undertaken, apparently because all of the trial judge, the Crown Prosecutor and counsel for the appellant considered that there were no restrictions on what Rachel Golby could be questioned about and in particular that her credit could be attacked. The extent of questioning led or contributed in turn to the calling of evidence from Rebecca Jones, Kerry Francis, Mrs. Kim Robertson and Detective Senior Constable Robinson about what Rachel Golby had been doing on the afternoon of 21 June 1998, what she had said to them, her drug habit, and Rebecca Jones' relationship with the complainant. 5 The result was to convert the focus of the trial from whether the appellant maliciously inflicted grievous bodily harm on the complainant to whether Rachel Golby was lying to protect the appellant - a proposition put to her on more than one occasion in the course of her questioning by the prosecution. The risk of prejudice to the appellant was high, particularly when the jury might have held Rachel Golby's lying against the appellant. There was nothing to suggest that she was lying to protect him at his instigation. 6 Proper exercise of the discretions should have controlled this uninhibited excess. A stark example of the excess is the question put to Rachel Golby, that she had said that the appellant had threatened to kill the complainant, his mother and his sister if the complainant "dobs on me". She denied saying this, and there was no other evidence of it. It was highly prejudicial to the appellant. 7 It is not easy to see how directions to the jury could overcome the risk of prejudice to the appellant. The directions given, however, did not do so. The material passages have been set out in the reasons of Greg James, J. They exacerbated the problem, rather than alleviated it, by the emphasis given to whether Rachel Golby was lying and a rather confusing direction which included that, through the evidence of Rebecca Jones, Kerry Francis, Mrs. Robertson and Detective Senior Constable Hayes, what Rachel Golby said out of court could be taken as evidence of an eye witness account of the incident. 8 What I have said applies in general to the leave given to the prosecution to question Mrs. Kathleen Golby. In my opinion there was a miscarriage of justice, and the conviction should be quashed and a new trial ordered. 9 GREG JAMES, J: This is an appeal against conviction and an application for leave to appeal against sentence. 10 At a trial in the District Court of New South Wales at which he had pleaded not guilty, the appellant was found guilty of a charge of having, on 21 June 1998 at Umina, maliciously inflicted grievous bodily harm upon Matthew Gray. That offence, under s.35(b) of the Crimes Act 1900, is punishable by a maximum penalty of seven years imprisonment. 11 On 24 March 2000, he was sentenced to imprisonment for five years and six months, commencing on that day and expiring on 29 September 2005. A non-parole period was imposed of four years, one month and two weeks. The appellant had been on bail for approximately 21 months prior to sentence. 12 A first trial had commenced on 13 March 2000. In that trial, the entire Crown case had concluded and the appellant had given evidence in chief when, during an interruption of his cross-examination, the question of whether the complainant's evidence might be undermined by what appeared to be a mistake as to a relevant day and whether it might be open to a juror to accept the account of the complainant and hold that the accused was a liar, in consequence of that mistake, was raised. 13 The trial judge, of his own motion, indicated that he was prepared to discharge the jury. After he indicated this and that the mistake might be adverse to a proper consideration of the appellant's evidence, counsel sought the jury be discharged. Following that discharge, a second trial was commenced with a fresh jury. It is from that trial that the appeal is brought. 14 A number of objections had been taken and rulings on evidence had been made during the first trial. The second trial proceeded substantially on the basis of those rulings without further detailed objection, argument or the giving of detailed reasons by the trial judge, apparently on the basis that the parties' rights were preserved. 15 Certain of the grounds of appeal challenge some of such rulings, particularly those by which his Honour granted leave to the Crown Prosecutor to cross-examine certain witnesses called in the Crown case and permitted the calling of evidence in the Crown case of statements asserted to be inconsistent with aspects of those witness' accounts. Those grounds were:- "(1) His Honour erred in granting leave to the Crown Prosecutor to cross-examine Rachel Golby. … (6) His Honour erred by admitting the evidence of Rebecca Jones. (7) His Honour erred by admitting the evidence of Kerry Francis. (8) His Honour erred by admitting the evidence of Kim Robertson. (9) His Honour erred in admitting the evidence of Detective Senior Constable Hayes as to the out of court representations of Rachel Golby. (10) His Honour erred by granting leave to the Crown Prosecutor to cross-examine Kathleen Golby." 16 It will be convenient to consider those grounds initially and to consider them together, as they raise a common question, but I should here note that in addition, there were other grounds (apart from the asserted severity of the sentence) referring to the asserted inadequacy of his Honour's directions in the summing-up and the mode of questioning of the witnesses. None of the other grounds asserted would, if successful, warrant other than a new trial. For the moment, I put the other grounds to one side. 17 In the context, although the legal point is common to his evidence also, it is not necessary particularly to consider the grant of leave to cross-examine Daniel Bjedov, which was the subject of a separate ground of appeal, for the reasons which later appear in this judgment. 18 To consider how it came about that grants of the leave complained of were given and the challenged evidence called, it is necessary to set out a short summary of the Crown case. 19 Shortly, it was contended for the Crown that Matthew Gray, the complainant, while visiting his girlfriend, Rachel Golby, at her home in Umina, was assaulted by the appellant in the backyard of that home. The complainant asserted that he was struck with a post, and hit three to four times on the arm and the leg, occasioning him severe injuries; he recognised his assailant; he called for Rachel as he was being assaulted; he saw Rachel's mother, father and brother in the backyard and recalled them telling the appellant to leave; he was screaming to Rachel's brother for assistance; he was carried to Rachel's mother's car and driven by Rachel and her mother to Gosford Hospital. He complained to his mother the next morning at the hospital and asked her to ring the police. He informed the police on their attendance that he had been bashed by the appellant. 20 The appellant gave evidence denying the complainant's account. Some reference to the circumstances as given in evidence surrounding that account is helpful. 21 On the morning prior to the attack, the complainant and Rachel Golby had been lying alongside each other in her bedroom when the appellant had entered the room and there was some conversation between the appellant and Rachel. The appellant had made remarks to the complainant, refusing to shake his hand and indicating that the appellant knew what he looked like. After the appellant left, Rachel had told her mother in the complainant's presence that the appellant had come over and she reiterated to her mother what the appellant had said to the complainant. The complainant said in evidence that Mrs. Golby, Rachel's mother, told him to be careful of the appellant. 22 He left the Golby home but returned for dinner. After dinner, he and Rachel retired to her downstairs bedroom. After watching television with her for about half an hour, he left the room to visit the outside toilet on the other side of the backyard. When leaving the toilet he was detained by the appellant who asked him to go to the appellant's car. He refused and started to call out for Rachel. The appellant struck him to the side of the face, causing him to fall to the ground and then struck him three or four times with the post. 23 Some of the evidence of the complainant, in particular of conversations with or statements made by other persons, including his mother, Kim Robertson, seems to have been admitted as a consequence of rulings made in the prior trial and, in particular, on the basis that unfavourable evidence was expected to be given by Rachel Golby. 24 Rachel Golby's evidence in chief plainly diverged substantially and in many respects from an original statement she had given to police. It was clearly open to the trial judge to consider that her evidence was, in a number of those respects, at least, to be unfavourable as well as inconsistent with her prior accounts. 25 In her evidence in chief, before leave to cross-examine was given, she referred to the appellant as someone she had had a previous relationship with, some two and a half to three years ago; he was a good family friend. She referred to the appellant coming to her room on the morning of 21 June but gave a version of the conversation that ensued which was materially different from that given by the complainant. Her evidence did not include the appellant saying anything to the complainant other than, "How are you going, mate". Similarly, her evidence was inconsistent with that of the complainant as to the conversation between herself, her mother and the complainant. She contended she had rung the complainant to ask him to purchase drugs for her and that he had returned to the house with a cap of heroin which she shot up. 26 At 6.00 pm, she called the complainant to come to dinner, since he was some 15 minutes late. On her account, after dinner they returned to her room where she fell asleep. She said the next thing she heard was a loud scream coming from outside. She got up and ran into the door which was locked. She opened the door and found the complainant alongside the garden bed. At that point she called her parents. Her parents went to the complainant and put him in the car and took him to hospital. 27 She did not know what had happened to the complainant and told her mother that on the way to the hospital. At the complainant's suggestion, her mother contacted his mother. 28 During a conversation at the hospital, the complainant, she said, said to her, "Gary Hogan did it" and "let's just say Garry Hogan did it, because he [the complainant] would get a whole heap of money out of it and that he would give me a quarter of it". She asked him how he could say that when the appellant didn't even know the complainant. At about this time the complainant's mother arrived. 29 She asserted she did not tell the complainant's mother what had happened, because she did not want to tell any lies. She just said that he got bashed. She said she was not present at any substantial conversation between the complainant and his mother. She claimed that on 22 June, when she visited the complainant in hospital, he wanted to know if she could go along with him in blaming Garry Hogan for the assault, as he wanted to "go for a claim" (presumably seeking victims compensation). He told Rachel Golby that he would give her a quarter of any money that he received. She agreed because she was on drugs at the time. 30 During this conversation, she said, the complainant's mother was present. Whilst at the hospital, she saw Rebecca Jones and said to her that she did not know what had happened to the complainant, only that he had just got bashed. 31 At this point of the trial, the Crown Prosecutor made what is referred to as "an application under s.38 of the Evidence Act 1995 to cross-examine the witness". Defence counsel is recorded as opposing the application. The following appears in the transcript:- "As I held last week, I consider that s.38 is applicable and I propose to let the Crown Prosecutor cross-examine this witness as I did last week. Mr. Cruickshank you might be right about one thing, about us getting another story next week if there was another trial, but that doesn't mean s.38 doesn't apply." 32 At the commencement of the previous trial, the Crown Prosecutor had foreshadowed applications were to be made under s.38 "re unfavourable Crown witnesses" and there was some consideration of whether the Crown should be permitted to open representations made to police by Rachel Golby. 33 The Crown had declined to call her father as an unreliable witness and had succeeded on an application to issue a bench warrant for the arrest of her mother as she had not attended on subpoena. 34 At p.43 of the transcript on 13 March 2000 in first trial appears the following:- "CROWN PROSECUTOR: You Honour I have an application to make in the absence of the jury. HIS HONOUR: Yes. Members of the jury you'll be taken to the jury room while I hear what the Crown Prosecutor wants to say to me. IN THE ABSENCE OF THE JURY CROWN PROSECUTOR: You Honour could the witness be asked to wait outside whilst I make my application? HIS HONOUR: Yes, would you wait outside. The Crown Prosecutor wants to say something to me. He won't be very long, so don't go too far away. WITNESS STOOD DOWN CROWN PROSECUTOR: Your Honour I seek the leave of the court to be allowed to cross-examine this witness under the three heads outlined under s.38(1) of the Evidence Act, that the witness is unfavourable to the Crown, that the witness may reasonably be supposed to have knowledge about which it appears to the court the witness is not in examination in chief making a genuine attempt to give evidence and (c) that the witness had made prior inconsistent statements to the evidence she is now giving. The prior inconsistent statements your Honour are detailed in her statement to the police dated 23 June 1998. HIS HONOUR: Have you got a copy of it? CROWN PROSECUTOR: Yes, your Honour. MFI 1 - STATEMENT OF RACHEL GOLBY DATED 23 JUNE 1998 HIS HONOUR: You said statements, are there others? CROWN PROSECUTOR: There are your Honour. I'll have my solicitor hand you a full copy of the brief with the different statements marked. HIS HONOUR: I only want the three statements that you say she's made. CROWN PROSECUTOR: Yes. Just pull out then the statement of the witness dated 23 June 1998, the statement of Kim Robertson, the mother of Matthew Gray, paragraphs 32 and 33. The statement of Senior Constable Wallace Bicket, paragraph 5, the statement of Kerry Francis, paragraph 13 and 14 and the statement of Rebecca Jones, paragraph 10 and paragraph 13. HIS HONOUR: I've got one statement only of the witness. CROWN PROSECUTOR: There's a record of interview taken on 24 June 1998 that I hand up to your Honour now and the statement of Senior Constable Wallace Bicket. HIS HONOUR: I though you said there were three statements of the witness. CROWN PROSECUTOR: No your Honour, three statements to, I beg your pardon your Honour. There is a third note from the witness. HIS HONOUR: So I've got a statement and a record of interview. CROWN PROSECUTOR: And a fax was sent by the witness on 13 March. I give that to your Honour. HIS HONOUR: All right. Let me have a look at these to start with. She's clearly given evidence inconsistent with paragraph 8 of the statement of 23 June 1998. CROWN PROSECUTOR: Yes. HIS HONOUR: Now I'll have to look at the record of interview. Is there any particular part of it to which I should look? CROWN PROSECUTOR: No your Honour. The record of interview contains basically the retraction along the lines of the evidence given in court today. HIS HONOUR: I am only skim reading the record of interview but there appears to be nothing in that suggesting that she'd used drugs. CROWN PROSECUTOR: That's correct your Honour. There's a reference to drinking alcohol on that day. HIS HONOUR: Yes, Tropicana, whatever that is. CROWN PROSECUTOR: Yes. HIS HONOUR: You've given me the statement of Kim Marie Robertson who is the mother of the complainant. CROWN PROSECUTOR: That's correct your Honour. HIS HONOUR: What paragraph is relevant in that? CROWN PROSECUTOR: Paragraph 32 and 33. HIS HONOUR: That tends to confirm her initial statement to the police. CROWN PROSECUTOR: That's correct. HIS HONOUR: You've given me a statement of Rebecca Susan Jones. CROWN PROSECUTOR: Yes, paragraph 10 and paragraph 13 your Honour are the relevant paragraphs. HIS HONOUR: Paragraph 10 of this statement seems to confirm her initial statement to the police and her statement to the complainant's mother. CROWN PROSECUTOR: Yes your Honour and paragraph 13 in so far as when asked what she told the police on 23 June 1998 she said 'I told the truth'. HIS HONOUR: Now the statement of Kerry Francis. She confirms what Rebecca Jones says generally speaking. CROWN PROSECUTOR: That's correct at paragraphs 13 and 14. HIS HONOUR: Yes and paragraph 5 of Constable Bicket's statement confirms what she told police and what she told the others. Well Mr. Cruickshank. CRUICKSHANK: Your Honour did ask about drugs. HIS HONOUR: In the record of interview. CRUICKSHANK: There's no reference in the record of interview your Honour. HIS HONOUR: No but there is in the document sent by facsimile. CRUICKSHANK: In that document also your Honour and in the statement made by Stephen Vaughan Robinson, a police officer. HIS HONOUR: I don't have that statement. CRUICKSHANK: My friend might have a copy of it. CROWN PROSECUTOR: Yes I hand that up. CRUICKSHANK: His statement's dated 21 July 1998 your Honour. He was one of the investigating officers. In paragraph 23 he said that on Monday 29 June, which is approximately a week later, he went to the Golby's house. He spoke to Mr. Golby, Mr. Frank Golby. Rachel Golby was unable to speak, she was dribbling from the mouth and she appeared to be affected by drugs or alcohol and she was just incoherent apparently your Honour. That's a few days after. I'd submit that a drug habit is not something that descends on a person overnight. HIS HONOUR: Whether that be right or wrong, she didn't mention on 24 June having used drugs. CRUICKSHANK: Your Honour she's talking to police officers and of course using drugs is a criminal offence. Drinking alcohol to excess is not. HIS HONOUR: Yes. CRUICKSHANK: There are in the statements made to the girls at least there is reference -- HIS HONOUR: Look I'm not here assessing the witness. I'm considering whether or not the Crown falls within s.38 of the Evidence Act. Clearly the evidence given by the witness so far is unfavourable to the Crown. CRUICKSHANK: Yes your Honour. HIS HONOUR: Clearly it is evidence by reference to what she's told others, where she may reasonably supposed to have knowledge and clearly it is inconsistent with her statement. CRUICKSHANK: Well it's clearly inconsistent with her statement your Honour and I don't about B, I wouldn't say that it's clearly -- HIS HONOUR: Well in view of her statements to other witnesses, her two girlfriends, the complainant's mother and a policeman, I can conclude that she may reasonably be supposed to have knowledge of that which he is speaking about. CRUICKSHANK: Well your Honour she says that she made those statements at the behest of the victim, that's as I understood her evidence here your Honour. HIS HONOUR: Well not quite -- CRUICKSHANK: She said that that was to get money, well to get money is mentioned by the two girls, for Matt to get money out of it. HIS HONOUR: Well that doesn't mean that she's not giving evidence contrary to s.38 of the Evidence Act. Seems to me frankly to be without argument that she is in breach of s.38 and I propose to let the Crown cross-examine her. On this application the statements that I have been given will be marked for identification and will remain with the papers. MFI A1 - STATEMENT OF RACHEL GOLBY DATED 23 JUNE 1998 MRI A2 - RECORD OF INTERVIEW WITH RACHEL GOLBY DATED 24 JUNE 1998 MFI A3 - FACSIMILE MFI B - STATEMENT OF KIM MARIE ROBERTSON MFI C - STATEMENT OF REBECCA SUSAN JONES MFI D - STATEMENT OF KERRY FRANCIS MFI E - STATEMENT OF CONSTABLE WALLACE BRUCE BICKET MFI F - STATEMENT OF CONSTABLE STEPHEN VAUGHAN ROBINSON HIS HONOUR: Those documents are marked for identification in relation to this application under s.38 and those documents will remain with the court file. CRUICKSHANK: Your Honour I think when this matter was canvassed at the outset I did put the proposition that it was inappropriate for the Crown to call the witness because she was of so little credit. I concede that it is a matter for the Crown, but I would just like that noted on the record your Honour. HIS HONOUR: Yes will -- CRUICKSHANK: -- it's clearly the function of the Crown your Honour, but the court has little control over the manner in which the Crown conducts its case, but I would just like it noted your Honour that she appears to be of so little credit that it was inappropriate that she be called. HIS HONOUR: I think Mr. Cruickshank in view of the fact that the complainant had said that she was present at the door when things occurred and that thereafter she did things, it would have been unwise for the Crown to have called her, not to call her and suffered the request from you for a Jones v. Dunkell [sic] or Regina v. Buckman inference. As you say it is for the Crown to make the decisions and he has decided to call her." 35 It is notable that his Honour gave no further reasons for his ruling nor did he identify the factors to which he had regard when granting leave. There was no analysis of which factors pursuant to s.38(1)(a), (b) or (c) were the bases or basis of leave. 36 In evidence at the second trial, Rachel Golby confirmed that she had made the three page statement of 23 June 1998, the contents of which were put to her by the questioner at a time at which she had the document before her. After the grant of leave, the cross-examiner put the content to her in detail although the statement itself was not admitted into evidence. There was objection to some small portion of that content, but in the main the witness admitted making the asserted statements to the police, although denying their truth. 37 Detective Hayes had interviewed Rachel Golby who, he said, had said she had witnessed the assault. He interviewed her at Gosford Police Station where he obtained the signed statement. It appears from the questions put to Miss Golby that the contents of that statement were, except as to the important matter of the presence of Rachel Golby in the backyard, almost directly and precisely corroborative of the account given by the complainant. Whilst the complainant's evidence did not clearly show that she had seen the attack, her accounts asserted variously that she had and that she had not. His evidence did not directly show she had.