Citation: Ng v C Haskett LCM and DPP [2002] NSWSC 258
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 April 2002
Judge(s): Levine J
Background
The applicant faced a charge of maliciously inflicting grievous bodily harm on his wife under section 35 of the Crimes Act 1900. The prosecution's case rested primarily on the complainant's evidence that her husband had kicked her, causing three fractured ribs. The only medical evidence the prosecution tendered before closing its case was an expert certificate from a cardiothoracic surgeon stating that considerable force was necessary to cause the injuries, and a second certificate documenting the injuries on record.
During cross-examination of the complainant, defence counsel directly raised an alternative cause for the injuries: that the complainant had struck the corner of a coffee table. The specific location of the rib fractures (approximately 60 millimetres from the spine, toward the back) was put to the complainant in detailed questioning. Before the prosecution closed its case, there had also been an exchange in court indicating that medical evidence from a Dr Deal was being considered by the prosecution.
When the defence later called its own expert, Dr Oettle, who gave evidence that the kick described by the complainant was not capable of causing the injuries she had suffered, the Magistrate granted the prosecution leave to reopen its case after the defence case had concluded. The applicant sought leave in the Supreme Court to appeal that interlocutory ruling.
Legal Issues
- Whether section 104(4) of the Justices Act 1902 permitted an interlocutory appeal from the Magistrate's ruling allowing the prosecution to reopen its case.
- Whether the Magistrate erred in law by exercising her discretion to grant the prosecution leave to reopen after defence expert evidence had concluded.
- Whether "exceptional circumstances" existed to justify reopening, specifically whether the defence expert's causation evidence raised matters that were unforeseeable to the prosecution.
- Whether the rule in Browne v Dunn was breached by the defence's failure to put to the prosecution's medical evidence the proposition that the kick could not have caused the injuries.
Decision
Levine J granted leave to appeal and found that the Magistrate had erred in law. The core question was whether the matters raised by the defence expert were genuinely unforeseeable to the prosecution at the time it chose to close its case. His Honour concluded they were not.
The causation issue had been rendered clearly "live" well before the defence case began. Defence counsel had directly cross-examined the complainant about the alternative table-corner explanation and had put the precise anatomical location of the fractures to her in some detail. There had also been a pre-closure exchange in court indicating the prosecution was considering calling Dr Deal as a medical witness. Against that background, the Magistrate's conclusion that the defence expert raised matters the prosecution could not have foreseen was a misappreciation of the factual record.
On the Browne v Dunn argument, Levine J held that the rule was not offended. Because the issue of causation had been so thoroughly raised during the prosecution's own case, the defence was under no additional obligation to put its causation challenge directly to the prosecution's medical certificates. The issue was already squarely before the court.
Levine J concluded that the circumstances before the Magistrate were not exceptional and did not justify reopening the prosecution case. The error was one of law, grounded in a misreading of what had occurred in the proceedings up to that point.
Orders Made
- Time extended for the filing of the summons to 7 February 2002.
- Leave granted pursuant to section 104(4) of the Justices Act 1902 to appeal the Magistrate's interlocutory order of 25 October 2001 allowing the prosecution to reopen.
- Declaration that the Magistrate erred in law in exercising her discretion to adjourn the hearing to allow the prosecution to reopen.
- The Magistrate ordered to continue the hearing to its conclusion as if the order under review had not been made or sought.
- The DPP (second defendant) ordered to pay the applicant's costs.
Key Takeaways
- A Magistrate's discretion to allow the prosecution to reopen its case after the defence case has begun is only available in exceptional circumstances; the Supreme Court confirmed that this threshold was not met where the disputed issue had been clearly identified during the prosecution's own case.
- The foreseeability of an issue is assessed by reference to the actual conduct of proceedings, not merely the formal structure of each party's case. Here, detailed cross-examination of the complainant on causation and anatomy made the defence expert's later evidence entirely predictable.
- Under the rule in Browne v Dunn, there is no obligation to put a proposition to a witness whose evidence does not address it, where the relevant issue has already been squarely raised through cross-examination of another witness on the same point.
- An interlocutory ruling in Local Court criminal proceedings can be the subject of a leave application to the Supreme Court under section 104(4) of the Justices Act 1902, even where the underlying proceedings have not concluded.
- Granting leave to the prosecution to reopen after defence expert evidence is concluded constitutes an error of law where the Magistrate's reasoning rests on a misappreciation of the factual record of the proceedings before her.
Legislation and Cases Referenced
Legislation
- Justices Act 1902 (NSW), section 104(4)
- Supreme Court Rules, Part 51B, rule 6(ii)(a)
- Crimes Act 1900 (NSW), section 35
- Evidence Act 1995 (NSW), section 177
Cases
- Shaw v R (1952) 85 CLR 365
- Killick v The Queen (1981) 147 CLR 565
- The Queen v Chin (1985) 157 CLR 671
- Lawrence v The Queen (1981) 38 ALR 1
- House v The King (1936) 55 CLR 499
- Bush v The Queen (1993) 115 ALR 654
- Browne v Dunn (1894) 6 HL 66
- The Queen v Peter Schneidas (No 2) (1981) 4 A Crim R 101