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Court of Criminal Appeal 1 April 2022

Scaysbrook v R

[2022] NSWCCA 69

Assault & violence
CRIMINAL LAW EXAMINING HIM EXAMINATION LEAVE TO RELY ON THOSE GROUNDS REFUSED APPEAL DISMISSED

Citation: Scaysbrook v R [2022] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 1 April 2022
Judge(s): Bellew J (with Lonergan J and Ierace J agreeing)

Background

The applicant was stopped at a random breath testing station on Forest Way, Belrose, in February 2018. After a preliminary breath test indicated alcohol in his system, police asked him to undergo a further test. He declined and became aggressive.

On the Crown's case, the applicant pushed a senior constable in the chest, causing him to fall and suffer a severe fracture to his right wrist. A separate incident during the subsequent scuffle led to another officer sustaining a groin injury. The applicant maintained that police were the aggressors and that the officer's fall resulted from catching his heel on the footpath, not from being pushed.

Following a jury trial in the District Court before Judge Noman SC, the applicant was convicted on count 1 (recklessly inflicting grievous bodily harm on a police officer acting in the execution of duty, contrary to s 60(3) of the Crimes Act 1900 (NSW)) and count 3 (assault occasioning actual bodily harm on a second officer). He was sentenced to three years' imprisonment with a non-parole period of one year and eleven months. His appeal to the Court of Criminal Appeal concerned the conviction on count 1 only.

  • Whether the Crown breached the rule in Browne v Dunn by failing to put specific propositions to the applicant during cross-examination, in circumstances where those propositions were inconsistent with the applicant's account
  • Whether the jury's verdict on count 1 was unreasonable or unsupported by the evidence
  • Whether the trial judge misdirected the jury in relation to a complaint of injury said to have been made by the applicant and in relation to police witnesses having read their statements when giving evidence in chief (sought to be raised for the first time on appeal)

Decision

Browne v Dunn ground: The Court rejected the argument that the Crown had failed to comply with the rule in Browne v Dunn (1893). That rule, in summary, requires a party to put to a witness in cross-examination any matter that contradicts that witness's evidence, so the witness has a fair opportunity to respond. The Court found that the applicant was clearly on notice of the Crown's case throughout the trial. The audio recording of the incident, the agreed facts, and the cross-examination of police witnesses all made plain what the Crown alleged. In those circumstances, the rule did not require the Crown to put each specific proposition to the applicant line by line during cross-examination.

Unreasonable verdict ground: The Court examined whether it was open to the jury, on the evidence, to be satisfied beyond reasonable doubt of the applicant's guilt on count 1. Applying the established test from cases including M v The Queen, MFA v The Queen, SKA v The Queen, Libke v The Queen, and Pell v The Queen, the Court concluded that the jury's verdict was reasonably open. The Crown's evidence, including that of the police officers and the audio recording, provided a sufficient basis for the jury's findings, notwithstanding the applicant's competing account.

Jury direction grounds: The applicant sought leave to raise two further grounds relating to alleged misdirections by the trial judge. Because no objection had been taken at trial, leave was required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The Court refused leave. It found that the impugned directions were not only unobjectionable but were entirely appropriate responses to submissions made by defence counsel in the closing address to the jury. Granting leave in those circumstances would have been inconsistent with the conduct of the trial itself.

Orders Made

  • Leave to appeal granted in respect of grounds 1 and 2
  • Leave to appeal refused in respect of ground 4
  • Appeal dismissed

Key Takeaways

  • The rule in Browne v Dunn does not require a party to put every specific proposition in cross-examination where the opposing party is already clearly on notice of the case being mounted against them; the adequacy of compliance is assessed in the full context of the trial, not mechanistically.

  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed the applicable standard: the question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, not whether the appellate court would itself have reached the same conclusion.

  • Where a ground of appeal raises a complaint about a jury direction that was not objected to at trial, leave to rely on that ground under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 will be refused if the direction was appropriate in light of how the trial was conducted, including the content of closing submissions.

  • No error was established in any of the grounds for which leave was granted, confirming that a conviction will not be disturbed merely because an applicant advances an alternative account of events that the jury was entitled to reject.

  • The Court's treatment of the audio recording as central to its analysis of both the Browne v Dunn and sufficiency of evidence grounds illustrates how contemporaneous recordings can define the parameters of a criminal appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 60(2), s 60(3)
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Browne v Dunn (1893) 6 R 67
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- Libke v The Queen (2007) 230 CLR 559
- Pell v The Queen (2020) 268 CLR 123
- The Queen v Baden-Clay (2016) 258 CLR 308
- R v Birks (1990) 19 NSWLR 677
- Allied Pastoral Holdings Pty Limited v The Commissioner of Taxation [1983] 1 NSWLR 1
- Seymour v The Australian Broadcasting Commission (1977) 19 NSWLR 219
- Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
- Spencer v Bamber [2012] NSWCA 274
- Trevascus v R (2021) 104 NSWLR 571
- Pratten v R [2021] NSWCCA 25
- Aravena v R (2015) 91 NSWLR 258
- Greenhalgh v R [2017] NSWCCA 94