AJ v The Queen
[2011] VSCA 215
•7 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0991
| AJ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, WEINBERG and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 12 November 2010 |
| DATE OF JUDGMENT | 7 December 2010 |
| DATE OF ADDENDUM | 27 July 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 215 |
| JUDGMENT APPEALED FROM | R v AJ (Unreported, County Court of Victoria, Judge Campton, 16 December 2009) |
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CRIMINAL LAW – Conviction – Sexual offences – Indecent act with or in the presence of child under the age of 16 – Evidence – Allegation that complainant sent a text message stating her allegations were false – Whether trial judge restricted defence counsel’s cross-examination of complainant as to the text message – Fair trial – Whether non-disclosure by the Crown of matters potentially affecting the complainant’s credibility rendered trial unfair – Whether disclosure would have significantly damaged Crown case or advanced accused’s defence – R v Grey (2001) 184 ALR 593, applied – Appeal allowed – New trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones with Ms E McKinnon | Michael Brugman |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Weinberg and Bongiorno JJA.
WEINBERG JA
BONGIORNO JA:
On 16 October 2009, the applicant, AJ, was found guilty by a jury on one count of committing an indecent act with or in the presence of a child under the age of 16. The child was his daughter, XN. At the same time he was acquitted of two counts of taking part in an act of sexual penetration with the same child. All of the offences were alleged to have occurred between 1 November 2005 and 31 December 2005.
Prior to the trial at which he was convicted, AJ had been tried twice on the same presentment by the same judge. At the first trial, the trial judge discharged the jury without verdict following an irregularity involving defence counsel’s compliance with the rule in Browne v Dunn.[1] At the second trial, the jury was unable to reach a verdict, even by majority, and was discharged without verdict.
[1](1893) 6 R 67.
AJ’s third trial, which was by modern standards extremely short, commenced on 12 October 2009 and finished with a majority verdict in respect of all counts on 16 October 2009. Following a plea hearing on 4 December 2009, on 16 December, the trial judge sentenced AJ to 20 months’ imprisonment on the count of taking part in an indecent act with a child under the age of 16, the only count upon which he was found guilty. Pre-sentence detention of 202 days was noted. Her Honour did not fix a non-parole period in respect of the 20 month term. She gave no reason for not having done so. AJ now seeks leave to appeal to this Court in respect of both his conviction and sentence.
The applicant’s full statement of grounds with respect to his conviction appeal filed 13 August 2010 contained seven grounds. Upon filing his outline of submissions on 24 September 2010 the applicant abandoned ground 4 and foreshadowed adding a ground 7A at the hearing. Subsequently, shortly before the matter came on for hearing, the Court was notified of two further grounds upon which he would seek leave to rely, grounds 4A and 4B. Grounds 5 and 6 were abandoned at the hearing of the application and it later became necessary for the Court to formulate the only ground upon which the applicant was ultimately successful, ground 4C.[2]
[2]See [31] below.
Grounds 1, 2 and 3
Grounds 1, 2 and 3 were concerned with a text message said to have been sent by the complainant to the applicant’s de facto wife on 15 January 2009 and were in the following terms:
1.A miscarriage of justice occurred as a result of the restriction upon cross-examination as to matters of bias by preventing counsel for the applicant putting to the complainant that she had sent a text message on the 15th January 2009 at 2.01 pm saying ‘Can you tell Dad that I didn’t mean for this to happen. As it never happened. Mum is making me do this. Can you tell Dad I’m so sorry.’
2.A miscarriage of justice occurred by the cross-examination as to the text message being considered as cross-examination as to credit and not bias.
3.The learned trial judge erred by excluding the contents of the text message from evidence by preventing the evidence from being adduced in cross-examination.
Because of her age, the complainant in this proceeding gave her evidence at a special hearing pursuant to s 41G of the Evidence Act 1958 on 3 August 2009, immediately before the commencement of the first of the applicant’s trials.
At the trial at which the applicant was convicted, the special hearing of the complainant’s evidence was reopened to enable some further matters to be put to her in cross-examination. One of those matters concerned an SMS mobile phone message allegedly sent by her to the applicant’s de facto wife on 15 January 2009 in the terms set out in ground 1.
It must be stated at the outset that no evidence of the sending of this text message by the complainant or of its subsequent existence in any form has ever been produced. No such evidence was produced in the trial court; nor has any been produced in this Court. The only information concerning the content of the text message and its provenance was provided by counsel for the applicant who, in conveying that information to this Court, was presumably repeating his instructions. However, as none of these grounds can succeed, they can be examined on the assumption that appropriate evidence of the existence and provenance of the text message would have been able to be obtained.
On the reopening of the special hearing before the trial judge counsel for the applicant and the prosecutor embarked upon a course designed to ascertain the complainant’s evidence as to the text message and, in particular, as to whether she sent it to the applicant’s de facto wife. By agreement, a typed verbatim transcript of the text message was placed in a sealed envelope and delivered to the complainant at the remote witness location from which she was giving her evidence. The special hearing transcript records the end of counsel’s cross-examination of the complainant as follows:
HER HONOUR: Did you just hear that, [XN]?---Yes, I did. Good, thank you. All right, [defence counsel] will ask you questions.
[DEFENCE COUNSEL]: [XN], can you hear me okay?---Yep.
Just before we broke yesterday I asked you if you sent a particular text message to [the applicant’s de facto wife] on 15 January 2009 at 2.01 p.m. So I’m going to be asking you the same question in relation to the same time frame, okay?---Yep.
The question is this: on 15 January 2009 at 2.01 p.m. from the telephone number [deleted] did you send a text message to [the applicant’s de facto wife] that reads according to what’s inside that envelope in front of you? So if you could open that envelope, and you’ll find there printed on that – have you read that to yourself?---Yep.
Making sure we’ve got the same thing, ‘Can you tell dad that I didn’t mean for this to happen?’
[PROSECUTOR]: I object to this, Your Honour.
HER HONOUR: Yes.
[PROSECUTOR]: That’s not the way it’s to be done at all.
HER HONOUR: No. All right, there’s no need for you to disclose what is on the piece of paper that she’s got. It’s a question of she reads it and she says yes or no.
[DEFENCE COUNSEL]: So have you read that to yourself?---Yes, I have.
Now, on 15 January 2009 at 2.01 p.m. did you send that text message to [the applicant’s de facto wife]?---No, I didn’t.
You’ve read that carefully to yourself?---Yes, I have.
You’re sure about that?---Yes, I am.
Has anyone discussed this text message with you before this time?---No, they haven’t.
No further questions.
No explanation was given as to why the course embarked upon of putting a sealed envelope containing the text message in writing before the witness was thought to be necessary or desirable. A special hearing for the taking of a child witness’s evidence is conducted on the voir dire. The record of it can be easily edited, if necessary, before it goes to the jury. In this instance there would appear to have been no reason for defence counsel not to have been able to cross-examine the complainant by putting the proposition squarely to her that she had sent the text message by reference to its specific terms. The prosecutor’s objection recorded in the above transcript could not be justified other than on the basis of an agreement between her and defence counsel. As the specific terms of that agreement were never spelt out in this Court no determination of that objection could or needs to be made.
The important thing about defence counsel’s cross-examination of the complainant concerning the text message was that upon her denying she sent it he desisted from taking the matter further. Provided the text message could be proved to have existed, it would have constituted a prior inconsistent statement – a statement inconsistent with her evidence-in-chief. It could have been proved in the ordinary way pursuant to the provisions of the Evidence Act 1958.[3] Strictly speaking, if the complainant created the text message alleged, she did so by keying in the words on her own mobile phone. Thus the message first existed on that phone. Assuming that the record of that message on her phone had been deleted or was otherwise unavailable to the cross-examiner, its existence could have been proved by production of the phone upon which it is said to have been received, together with oral evidence from the receiver of it of the circumstances surrounding its receipt. Such proof would have been sufficient to establish the words used and their provenance. A jury would have had little difficulty in thus attributing the text to the complainant with such consequences as they considered followed such attribution. Even as the law then stood such a prior inconsistent statement would have constituted a significant hurdle to the complainant’s evidence of her father’s actions being accepted by the jury.
[3]Sections 35 and 36.
The first three grounds set out above attribute error to the trial judge in three different ways. First it is said that defence counsel was placed under some restriction with respect to his cross-examination of the complainant as to the text message; second a miscarriage of justice occurred because cross-examination as to the text message was considered to go only to the credit of the witness and not to bias; third, the judge excluded the contents of the text message from evidence.
None of these grounds is made out. Counsel for the defendant did not seek to prove the text message and its provenance as he could have. The decision which he made to desist from cross-examining the complainant further when he did and of not seeking to prove the text message aliunde was his and his alone. There is no substance in ground one.
No error by the trial judge can be established under ground two. If, as might or might not be the case, defence counsel and the prosecutor considered that cross-examination as to the text message related only to a matter of credit upon which he was not entitled to produce further evidence, then that mistake and its consequences were not attributable to any error on the part of the trial judge or any deviation from appropriate practice required for a fair trial. There is no ground for imputing error to the trial judge. Ground two is not made out.
The trial judge did not exclude the contents of the text message from evidence by preventing its being adduced in cross-examination. As already pointed out, at the point at which the witness denied sending it, defence counsel could have, had he wished to do so, proved the text message and its provenance. He could then have tendered it. He did not do so. Ground three is not made out.
Grounds 4A and 4B
Two days before the hearing of this appeal an application was made to add two further grounds of appeal. The Crown did not oppose this application. Those grounds were:
4A.A miscarriage of justice occurred by the non-disclosure of the prosecution of Mark Raymond Pollard in April 2008 wherein [XN] was the complainant on four counts of rape.
4B.A miscarriage of justice occurred by the non-disclosure of the prosecution of the evidence of [XN] wherein –
(a)she denied having sent video messages to Pollard that were independently proved to come from her mobile telephone; and
(b)such messages being of a pornographic nature showing a person wearing a necklace of a kind the same as that that she was wearing at the time of the special hearing.
The application to amend the applicant’s grounds was accompanied by an affidavit of his solicitor which deposed that neither that solicitor nor trial counsel knew of the trial of Pollard and its possible relevance to the trial with which they were concerned until a solicitor from the Office of Public Prosecutions telephoned the applicant’s solicitor on 8 November 2010 and told him of it. He subsequently obtained material from the OPP file which enabled these grounds to be drawn. That material in addition demonstrated that the prosecutor in Pollard’s trial was also the prosecutor in the second and third of AJ’s trials.
Material in the Pollard file showed that he had stood trial in November 2008 (before the trial with which this application is concerned) on a number of sexual assault charges of which XN was the alleged victim. At the time of the offences Pollard was the next door neighbour of XN’s mother, with whom XN lived. He was convicted at that trial on one count of rape, one count of attempted rape and one count of sexual penetration in respect of XN. He has a current application pending in this Court for leave to appeal against those convictions.
In the course of Pollard’s trial XN was cross-examined concerning a large number of text messages, including messages which were pornographic or sexually explicit. She denied sending all but one of those text messages – a denial which may be able to be demonstrated as being false if she is properly cross-examined. Whether it could or not, it is of some significance that the prosecutor in that trial did not herself accept XN’s denials. She conceded that the complainant had lied. The transcript of the Pollard trial quotes the prosecutor as saying:
‘this is a case in which the Crown agrees that she sent, that is the complainant sent, pornography to [Pollard’s] phone as well so that’s not really an issue.’
Shortly after that statement was made by the prosecutor, defence counsel adverted to there being an agreement between the Crown and the defence about which images were sent by the complainant XN. This agreement must have been made on the basis that it was common ground, in the Pollard trial, that her denials were not to be accepted. Thus her credibility was, at best, suspect.
In the circumstances, the prosecutor’s failure to alert trial counsel in AJ’s trial to the circumstances of Pollard’s trial and, in particular, to the fact that she (the prosecutor) did not believe XN’s denials of having sent a very large number of text messages to Pollard, constituted a significant and most regrettable breach of her duty as a prosecutor. In R v K,[4] a decision of the South Australian Court of Criminal Appeal, King CJ said:[5]
[4](1991) 161 LSJS 135.
[5]Ibid 140.
There is a clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R v Paraskeva (1982) 76 Cr App R 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.
This passage in King CJ’s judgment was cited with approval by Charles JA (with whom Winneke P and Hayne JA agreed) in this Court in R v Lewis-Hamilton.[6] That case concerned the failure of the Crown to provide copies of a victim impact statement which was in the possession of the prosecution before the trial of the appellant. The victim impact statement contained material adverse to the Crown case which Charles JA considered:[7]
… relevant to the issues in the trial. Defence counsel appearing at the trial, if that material had been available to him, would, as also was the case in C.P.K., have been confronted with difficult tactical choices to make and would have had to deal very carefully, in cross-examining with that material. But I think the impact such cross-examination might have had could have been critical to the jury's verdict. In all the circumstances of this case, it seems to me that cross-examination of the complainant, based upon material contained in the victim impact statement, might reasonably have been expected to elicit answers materially affecting the complainant's credibility. It follows that it was essential, in the interests of justice, that the document be made available to the defence before trial, and that a miscarriage of justice arose in consequence of the prosecution's failure to do so.
[6][1998] 1 VR 630. In this report of this case R v K is incorrectly attributed to the NSW Court of Criminal Appeal.
[7]Ibid 635.
The obligation to disclose includes, in an appropriate case, an obligation to make enquiries.[8] To lead to a conclusion that a trial is vitiated by non-disclosure it is not necessary for the appellant to demonstrate that the jury verdict would have been different had the obligation been complied with. As Glidewell LJ said in R v Ward:[9]
Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.
[8]R v Garofalo [1999] 2 VR 625, 637 (Ormiston JA).
[9][1993] 2 All ER 577, 599.
The Senior Crown Prosecutor who conducted the Crown case on this appeal informed this Court that his instructing solicitor had recently realised, when preparing this appeal, that the Pollard material may not have been disclosed to AJ’s solicitors, a step which she appropriately recognised as necessary. She then spoke to the applicant’s solicitor, who confirmed her suspicion that this material had never been disclosed. She then arranged for it to be sent to him.
Had the Pollard file been disclosed to the defence lawyers prior to the present applicant’s trial it would have yielded information which could potentially have been of forensic use to the applicant’s counsel. At the very least XN could have been cross-examined as to the sending of text messages to Pollard and as to her earlier denials of having done so. Such cross-examination may have produced an admission, or may have permitted further exploration of the complainant’s credit. This could well have been to the benefit of the current applicant.
The High Court in Grey v R[10] considered a situation where an accused had not been provided with material in the possession of police concerning a Crown witness, one Reynolds. Reynolds’ evidence was significant to the prosecution case against him. The material withheld was a ‘letter of comfort’ provided by a Detective Bandouvakis to Reynolds. This police officer, who was the informant in Grey’s case, had previously been the officer in charge of an investigation into criminal activity by Reynolds in respect of which he had been charged and sentenced. The letter of comfort was given to him as a consequence of his having cooperated with police in respect of the investigation of matters which led to Grey being charged. Reynolds had received an informer’s discount on his own sentence accordingly.
[10](2001) 184 ALR 593 (‘Grey’).
Grey was convicted in the District Court and appealed to the Court of Criminal Appeal. That Court, by a majority, dismissed the appeal on the basis that the letter of comfort was ‘fresh evidence’ as that term is used in appellate jurisprudence and could, by reasonable diligence, have been discovered by Grey’s lawyers. On appeal to the High Court the Crown conceded that the letter should have been provided to Grey but contended that the omission of the police officer to so provide it did not lead to a miscarriage of justice. It argued that, notwithstanding the prosecution’s failure, the appellant had not been deprived of a full opportunity to discredit Reynolds who was, it was conceded, a key Crown witness. Rejecting that submission the plurality in the High Court (Gleeson CJ, Gummow and Callinan JJ) said that as Reynolds had been put forward by the Crown as a reliable witness the Crown case was presented on a disingenuous basis. The fact that the defence did not know of the special relationship between Reynolds and the police when that relationship ought to have been disclosed meant that there had been a miscarriage of justice in respect of Grey’s trial. Their Honours refused to apply the proviso to save Grey’s conviction. They referred to Wilde v R,[11] Mraz v R,[12] and R v Storey.[13]
[11](1998) 164 CLR 365, 371-372.
[12](1955) 93 CLR 493, 514.
[13](1978) 140 CLR 364, 376.
Subsequently, the High Court in Mallard v R[14] again considered evidence which the Crown had failed to disclose to an accused. In doing so the plurality (Gummow, Hayne, Callinan and Heydon JJ) expressed the ratio in Grey’s case as being:[15]
[14](2005) 224 CLR 125 (‘Mallard’).
[15]Ibid 133.
… that the prosecution must at common law also disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty.
Kirby J expressed the principle in similar terms, after reviewing Australian and international authorities:[16]
The applicable principles: The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.
[16]Ibid 155.
In Mallard the Crown’s failure to disclose concerned evidence in its possession which might have been exculpatory of the accused. In upholding Mallard’s appeal the Court pointed not only to the evidence which had the ‘capacity to refute a central plank of the prosecution case’ not being disclosed but also to evidence which had the capacity to discredit the credibility of the prosecution case because the strength of that case was heavily dependent on the reliability of certain police evidence.[17]
[17]Ibid 135.
Senior Counsel for the Crown in this case conceded that the prosecutor in AJ’s trials should have disclosed the Pollard material to AJ’s lawyers. He submitted, however, that no miscarriage of justice occurred by reason of her failure to do so.[18] But the credibility of the complainant XN was central to the Crown case. If the complainant’s evidence as to the offences alleged against the applicant was doubted he was entitled to be acquitted. The Crown was in possession of information which was of such cogency that it satisfied its own prosecutor that the complainant had lied on oath in an earlier trial. It did not disclose that information to the defence in this trial. It ought to have done so.
[18]Even if the prosecutor in AJ’s first trial did not know of the Pollard trial and XN’s credit difficulties it is inconceivable that everyone ‘… concerned on behalf of the Crown in the preparation and conduct of [AJ’s] prosecution was equally ignorant’: R v Lucas [1973] VR 693, 696 (Smith ACJ).
The Crown’s submission must be rejected. The conduct of the prosecution in failing to disclose that information has led to a miscarriage of justice. It is sufficient to require quashing of AJ’s conviction that it might have been used to induce in the minds of the jury a doubt as to XN’s credibility similar to that which the prosecutor must have entertained at the time she proffered the complainant as a witness in AJ’s trial. Like Grey and Mallard, this is also not an occasion for the operation of the proviso. That AJ’s lawyers knew nothing of the Pollard trial deprived him of a ‘chance that was fairly open to him of being acquitted’,[19] or a ‘real chance of acquittal’.[20] As Brennan, Dawson and Toohey JJ said in Wilde v R:[21]
Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.
[19]Mraz v R (1955) 93 CLR 493, 514 (Fullagar J).
[20]R v Storey (1978) 140 CLR 364, 376 (Barwick CJ).
[21](1988) 164 CLR 365, 361-372.
Grounds 4A and 4B added to the notice of appeal by leave do not adequately express the ground upon which this appeal must succeed. Accordingly, in the course of argument, counsel for the applicant sought and was granted leave to add yet another ground of appeal based on the failure of the prosecutor to disclose the Pollard material.[22] AJ should be given leave to appeal on this ground, the appeal should be upheld, his conviction set aside and a new trial ordered on the charge on which he was convicted. Of course, it will be for the Director of Public Prosecutions to determine whether, in all the circumstances, he should again be indicted, having regard to the material in the Pollard file, the period he has already spent in prison and any other matter relevant to the prosecutorial discretion.
[22]That ground should be formulated as follows: ‘4C. There was a miscarriage of justice caused by the Crown’s failure to disclose information in its possession which cast doubt on the credibility of the complainant.’
Grounds 7 and 7A
The only other grounds argued by the applicant concerned failures by the trial judge to instruct the jury when they indicated to her Honour that they were having difficulties in agreeing upon a verdict. Counsel for the applicant argued that the trial judge did not give an appropriate perseverance direction in accordance with the High Court’s decision in Black v R[23] (Ground 7) and an appropriate majority verdict direction in accordance with the decision of this Court in R v Muto[24] (Ground 7A).
[23](1993) 179 CLR 44 (‘Black’).
[24][1996] 1 VR 336 (‘Muto’).
An examination of what her Honour said to the jury in relation to perseverance and majority verdicts, although not a verbatim repetition of that suggested by the High Court in Black, or the ‘standard direction’ referred to by this Court in Muto, reveals that it was adequate to ensure that the jury understood their duty. There is nothing in either of these grounds and, in any event, having regard to the applicant’s success on the ground concerned with the Crown’s failure to make appropriate disclosure, there is no need to consider them further.
The sentence appeal
Given that the applicant should be granted leave to appeal against his conviction and the appeal upheld necessitating a retrial, it is unnecessary to consider his application for leave to appeal against sentence.
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Addendum
Following a further hearing before the Court on 27 July 2011 at which the Chief Crown Prosecutor, counsel for AJ and the trial prosecutor in AJ’s trial appeared and made submissions the Court published the following addendum to its judgment delivered 7 December 2010:
BUCHANAN JA:
WEINBERG JA:
BONGIORNO JA:
Subsequent to the publication of its judgment in this case the Court received a letter from the prosecutor in the applicant’s trial (who did not appear in this Court). That letter, dated 24 January 2011, asserted that although she did not herself apprise the appellant’s lawyers of the Pollard material she believed, at the time of the appellant’s trial, that the Crown, through others, had done so. The Court decided that the importance of the principle involved and the fact that the Court had severely criticised the prosecutor in its judgment warranted the matter being further considered, not for the purpose of reconsidering the judgment already delivered, but of ensuring that no injustice was done to the prosecutor.
As a result of enquiries made by the DPP at the Court’s request the Court has come to the conclusion that although it is satisfied that there was no disclosure of the Pollard material to the appellant’s lawyers at any time until a few days before this appeal was heard, there exists in a Crown file a note which could justify the prosecutor taking the view she did that appropriate disclosure had been made. The source of the information in that file note, another barrister who held the Crown brief for a short period before the appellant’s trial, has since said that he has no independent recollection of having told the appellant’s lawyers of the Pollard material.
The events which have occurred in this case illustrate the care required of prosecutors in carrying out their important functions. The trial prosecutor was in possession herself of all the relevant Pollard material. She should have ensured that the appellant’s lawyers were similarly informed, if not before the trial commenced then at least when it ought to have become apparent that, as no mention of that material had been made, it was probable that they were ignorant of it.
The Chief Crown Prosecutor advised the Court that the Crown accepted the proposition that in circumstances where, for any reason, a prosecutor returns a brief to prosecute in a trial and the brief is subsequently delivered to another member of counsel, the duty of disclosure arises for consideration and discharge again by the new prosecutor. It is the personal responsibility of that prosecutor to ensure that that duty has been discharged prior to the commencement of the trial and as and when any further occasion calling for its exercise arises. This Court endorses the Crown’s position as expressed by the Chief Crown Prosecutor.
Finally, the ground of appeal upon which the Appellant was successful was, understandably, added, by amendment, at a very late stage. The Senior Crown Prosecutor who conducted the appeal for the Crown was, clearly, insufficiently instructed as to the added ground. He ought to have sought an adjournment (to which in the circumstances, the Crown would have been entitled) to obtain full instructions as to the events which gave rise to the added ground of appeal.
In the circumstances it is appropriate that the criticism directed at the trial prosecutor in the Court’s judgment be tempered to take account of the matters to which reference has been made in this addendum.
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