Ashley Howard v The Queen , , Matthew Roderick McKean and the Queen
[2018] VSCA 273
•26 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0038
| ASHLEY HOWARD | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2018 0048 | |
| MATTHEW RODERICK McKEAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 October 2018 |
| DATE OF JUDGMENT: | 26 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 273 |
| JUDGMENT APPEALED FROM: | DPP v Howard; DPP v McKean (Unreported, County Court of Victoria, Judge Carmody, 18 December 2017) |
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CRIMINAL LAW — Appeal — Conviction — Duty of prosecutor — Failure to call witness — Whether substantial miscarriage of justice resulted — Leave to appeal refused.
CRIMINAL LAW — Appeal — Conviction — Directions on prosecutor’s failure to call witness — Whether directions proper — Leave to appeal refused — Jury Directions Act 2015 s 43.
CRIMINAL LAW — Appeal — Conviction — Opinion of police officer that potential prosecution witness is untruthful and unreliable — Whether admissible — Leave to appeal refused — Evidence Act 2008 ss 76, 77, 78, 79, 101A, 102, 108A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Howard | Mr J Gullaci | Stephen Peterson Lawyers |
| For the Applicant McKean | Mr C K Wareham | Tyler, Tipping & Woods |
| For the Respondent | Mr C B Boyce SC with Mr C Carr | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
WEINBERG JA:
Introduction
On 18 December 2017, a jury in the County Court convicted the applicants Ashley (‘Ash’) Howard and Matthew (‘Matt’) McKean of seven charges of rape of an adolescent female, ‘JAL’, on 4 April 2015.[1]
[1]On 7 February 2018, the judge sentenced McKean to a total effective sentence of nine years and 10 months’ imprisonment, with a non-parole period of seven years and three months; and sentenced Howard to a total effective sentence of seven years’ imprisonment, with a non-parole period of five years.
At the time of the alleged offences, Howard was aged 21; McKean was aged 22; and JAL was aged 15.
The prosecution case was that McKean, without the complainant’s consent, penetrated her vagina with his finger (charges 1 and 8), penis (charge 3) and tongue (charge 7); her mouth with his penis (charges 2 and 6); and her anus with his finger (charge 4);[2] whilst being actively encouraged by Howard to carry out that sexual activity.[3]
[2]On 13 December 2017, the trial judge upheld a submission that there was no case to answer on another charge of rape, charge 5. An entry of ‘not guilty’ was made accordingly pursuant to s 241 of the Criminal Procedure Act 2009.
[3]See Crimes Act 1958, ss 323 and 324.
Significantly, the applicants did not put forward consent as a ‘defence’ at their joint trial. Indeed, the defence advanced by both applicants was simply that the alleged sexual activity had not taken place.
Each applicant seeks leave to appeal against conviction on the following grounds:[4]
1. The prosecutor’s failure to call Andrew McKean as a witness caused a substantial miscarriage of justice;
2. The trial judge erred in the direction given pursuant to section 43 of the Jury Directions Act 2015 (Vic) [as to the failure of the prosecution to call Andrew McKean as a witness in the trial] causing a substantial miscarriage of justice;
3. The trial judge erred in permitting the prosecutor to lead evidence that Andrew McKean was an unreliable and untruthful witness, causing a substantial miscarriage of justice.
[4]The applicant McKean was given leave to abandon a fourth ground, which was in the following terms:
4. The trial judge erred in directing the jury in accordance with section 54D of the Jury Directions Act 2015 (Vic).
In our opinion, none of the grounds can be upheld. Both applications for leave to appeal must therefore be refused. Our reasons for those conclusions follow.
The offending
On 4 April 2015, Howard and McKean, and McKean’s younger brother, Andrew McKean, went to an area near the Community Centre in a rural Victorian town. JAL also attended the same area accompanied by a young male friend. She and Howard and the McKean brothers did not know each other.
At one point, JAL wanted a cigarette and obtained one from the group constituted by Howard and the McKean brothers. JAL’s young male companion was not comfortable with her socialising with a group which included older males, so he left and went home. JAL remained with the group, smoking cigarettes and drinking alcohol. Two of her friends, a young male and a young female, joined the group near the Community Centre. JAL and her two friends, together with Howard and the McKean brothers, then walked to an area behind a nearby shop, where all six of them drank alcohol and smoked cannabis.
JAL became intoxicated and starting kissing Andrew McKean, who was about her age. The six then decided to walk to a residential premises in the same town, situated a couple of houses away from the home of the McKean brothers’ grandparents. In the backyard of the premises was a garage and some disused cars, including a maroon (or red) Ford.
Howard and the applicant McKean told Andrew McKean, JAL and her two friends to remain in the backyard of the premises whilst some cannabis and a bong was retrieved. When they returned, JAL’s friends decided to leave the property, since they did not want to smoke more cannabis. JAL, however, remained, and got in the backseat of the Ford with Andrew McKean, where they kissed (or, as JAL put it, were ‘hooking up’). She did not want to have any more cannabis.
Howard and the applicant McKean, sitting in the front of the Ford, started pressing Andrew McKean, saying ’Fuck her or we will’ (or words to like effect). Andrew McKean, however, did not want to have sex with JAL, who was obviously very drunk. He then left.
After Andrew McKean left, Howard and the applicant McKean convinced JAL to hand over her telephone, ostensibly so that it could be used as a torch to find something in the front of the car. McKean then climbed into the rear seat of the Ford with JAL, while Howard remained in the front seat.
Having gotten into the rear seat, McKean removed JAL’s underwear and inserted his finger in her vagina (charge 1). He then put his penis in her mouth (charge 2) and into her vagina (charge 3). McKean then inserted his finger into the victim’s anus (charge 4).
McKean then positioned himself so as to once more put his penis into the victim’s mouth (charge 6) and his tongue into her vagina (charge 7). At that point, JAL was having trouble breathing and wanted to vomit. Either at the time she was vomiting out of the car, or shortly after she had vomited, McKean again put his finger in the victim’s vagina (charge 8).
Throughout the whole episode, Howard encouraged McKean, suggesting to him that he should pull the victim’s hair and slap her face. McKean did as suggested. Both Howard and McKean persisted in their conduct, despite her yelling and crying out in protest, save that Howard did tell McKean at one point to desist so as to allow the victim to vomit. At no stage did McKean use a condom.
Ground 1 — The failure to call Andrew McKean
In circumstances where the applicants’ defence at trial was that no sexual activity occurred, there is an air of unreality attending ground 1 and the contentions advanced by the applicants’ counsel in support of it.
Andrew McKean took part in a VARE[5] with police on 6 April 2015 (when aged 15) and on 2 November 2016 (having just turned 16).[6] He also gave evidence at committal proceedings on 1 August 2017. It is fair to say that the evidence so provided contained a number of inconsistencies and contradictions.
[5]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.
[6]His date of birth is 26 October 1999.
It is also fair to say that the police officer conducting the first VARE interview with Andrew McKean had some difficulty eliciting a coherent narrative from him. Notwithstanding that difficulty, however, the following may be gleaned. Andrew McKean told police that his group met up with JAL outside the community centre. While walking to the residence where the Ford was located, he and JAL ‘hooked up’ when she ‘turned around and kissed [him]’. At one point in the VARE he said that he and JAL ‘started making out’ in the car, but he ‘felt really sick’ so he got out and went for a walk. When he came back, JAL said that ‘she wanted to have sex with Matt’ so he went home.[7] At another point, he said that JAL was acting ‘flirty’ with Matt, and when she leaned over to grab the bong from the front seat ‘she looked at Matthew and she kissed him’. Matt was ‘kissing her back’. Andrew McKean said he thought ‘this is getting really weird, ‘cause she was kissing me and now she’s kissing my brother’. He said he heard JAL ‘say that she wanted to have sex with Matt’. Andrew McKean said he thought, ‘Well, she’s a fuckin’ slut’, and he left. After he came back, he walked JAL to Coles. Her mascara was smudged, and she looked like she had been crying. On the way he asked JAL why she had stopped kissing him and had started kissing his brother, and ‘she changed the subject’. She seemed ‘pretty happy’ when they were walking.
[7]In his evidence at committal he said it was not true that JAL said that she wanted to have sex with Matt.
In the second VARE, Andrew McKean said that after he got out of the Ford, he went to speak to his grandparents ‘two houses down’. He told police:
And, like, when I was on the balcony at my grandparents’ house, you could hear this girl having sex with my brother and, like, it – it wasn’t – she was screaming for help. She like – so I went back – I went back, thought – wondered what was going on and she got out of the car and threw up. And so I – she asked me to walk her home and I walked her to the – like, the main – near the main street of [town] and she then got picked up. … But I do know that Ash [i.e. Howard] was the one that was violent with her.
He said that when they got to the main street, JAL hugged him and said, ‘Sorry that I fucked your brother. I was meaning to fuck you.’
At a later point in his second VARE, when the interviewer asked Andrew McKean to tell him about the noises he heard, he said:
Moaning. Like, it – like, it’s pretty – like, you’d – you’d be able to tell if she was moaning, like, enjoying or getting raped. All right. She was enjoying it. That’s what I could hear. … A girl enjoying herself, like, you know, having sex who’s moaning really loudly. Not like, ‘Ahh, help me, help me’ moaning …
And at a later point still, Andrew McKean said in the VARE:
Afterwards though – after it all happened, when I got back from walking this girl home, I saw Ash [Howard] in the bathroom and he was scrubbing his hands. And I went, ‘why are you scrubbing your hands?’ ‘Cause he was there for 10 minutes just scrubbing the fuck out of his hands. And I went, ‘What’s wrong? What is it?’ ‘I’ve got blood under my fingernails.’ … And that’s why I’m putting two and two together. … That’s why I think Ash was the one that was violent, ‘cause had blood – he had blood on his fingers afterwards.
When cross-examined by the applicant McKean’s counsel at committal, Andrew McKean said he heard his brother have sex with JAL — he heard a female moaning — and, when he got back to the car, saw that ‘she was putting her clothes back on’. She then threw up. He ‘knew for sure’ that the female moaning that he heard was JAL’s voice. Andrew McKean also gave evidence that as he was walking JAL to Coles she said, ‘I’m sorry I fucked your brother, I was meant to fuck you’.
We pause to note that there was other evidence consistent with the sounds of sexual pleasure emanating from the premises where the Ford was located. Berenice Rathgen, who lived diagonally opposite the premises, said that at about 10.30 pm on 4 April 2015, she and her husband went onto the porch of their home to look at a lunar eclipse. Whilst on the porch, she heard sounds which were consistent with the sound of a female experiencing sexual pleasure coming from the relevant premises. The sound was quite clear and did not last for very long. It did not sound as if the female was in any pain or fear. David Rathgen, her husband, gave evidence that he was disturbed to hear ‘the sound of sexual congressing [sic.] taking place’, which was ‘extremely vigorous and extremely loud’. A little later, he heard giggling and laughing.
Andrew McKean was named as a witness on the indictment filed against the applicants in the County Court; and, prior to the trial commencing, the prosecutor informed the applicants’ counsel that he intended to call Andrew McKean to give evidence in the prosecution case. At a very early stage of the trial pre-empanelment, however, the prosecutor announced that he no longer intended to call Andrew McKean, ‘having formed a certain view of his veracity’.
Much later still, in the context of a discussion between counsel and judge as to directions necessary to be included in the judge’s charge, the prosecutor informed the trial judge that he had formed the view that Andrew McKean was ‘someone who would not be reliable in any account’. The prosecutor said that he ‘was satisfied of his unreliability, not just in terms of what he said but his general behaviour’. Everything, the prosecutor said, indicated that ‘he was not trustworthy’. The prosecutor formed these views of Andrew McKean having ‘conferenced him’ (sic.), during which he refused to ‘engage with’ the prosecutor with respect to inconsistencies in his VAREs and committal evidence. He thereafter made himself uncontactable.
Having heard what the prosecutor had to say on the subject, defence counsel did not insist that Andrew McKean be called for cross-examination, contenting themselves with a request for a direction under s 43 of the Jury Directions Act 2015 (‘JDA’).
We pause once more to note that, after the prosecutor had informed the judge of his reason for not calling Andrew McKean, there was some further discussion between counsel and judge, which led ultimately to the informant, Acting Detective Sergeant Jason Benbow, offering his opinion that Andrew McKean’s evidence was ‘unreliable’ and ‘untruthful’. This evidence — which we will return to when considering ground 3 — was offered by way of explanation for the failure to call Andrew McKean to give evidence.
The thrust of the submissions by the applicant’s counsel in this Court under cover of the first ground was that, notwithstanding that consent was not put in issue by the defence at trial, the trial judge was bound to leave to the jury for their consideration any matter upon which the jury could upon the evidence have found for their clients.[8] In the written case, counsel for the applicant Howard submitted of Andrew McKean that:
He was not a perfect witness for either the prosecution or the defence having given inconsistent accounts about some matters.
Nonetheless, the failure to call him has caused a substantial miscarriage of justice in all the circumstances of this case. He was a witness who was directly relevant to the question of consent and his evidence had some support from other independent witnesses …
[8]Citing R v Baden-Clay (2016) 258 CLR 308, 328–9 [62]–[63].
And in a similar vein, counsel for McKean submitted in writing:
While a positive defence of consent was not run at trial, the jury had to be satisfied beyond reasonable doubt that if the alleged acts occurred, that the complainant was not consenting. The potential evidence of Andrew McKean may have raised reasonable doubt as to the guilt of the Applicant and co-accused.
Notwithstanding the manner in which the defence case was run on behalf of the Applicant, it remained an obligation of the Trial Judge to identify to the jury any matters that the jury could find, upon the evidence, for the accused. The absence of a positive defence of consent at trial does not operate to render the issue null — and as such, it is a matter upon which the Trial Judge was required to direct the jury, and identify evidence that related to it. In the absence of Andrew McKean, there was no such evidence.
As we have said, there is an air of unreality about these submissions, given that each of the defence cases was that no sexual activity had taken place. Importantly, although it might be said that Andrew McKean’s account (or accounts) displayed inconsistencies on peripheral matters, there was one aspect of his narrative which remained consistent across his two VAREs and his evidence at committal — that his brother was involved in sexual activity with JAL. Upon the assumption that he would have continued to maintain that consistent aspect of his narrative — and there is no reason to think that he would not have — self-evidently his evidence would have supported the prosecution case on the central issue of sexual penetration, thereby diminishing the defence cases.
In Apostilides,[9] the High Court laid down a number of general propositions concerning a prosecutor’s duty with respect to the calling of witnesses:
1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[9]R v Apostilides (1984) 154 CLR 563, 575 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ) (‘Apostilides’).
The Court also said:[10]
In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. … So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.
[10]Ibid 577–8.
Further, in Whitehorn,[11] Dawson J observed:
All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. …
[11]Whitehorn v The Queen (1983) 152 CLR 657, 674 (‘Whitehorn’).
In the present case, the prosecutor declined to call Andrew McKean as a witness after having conferred with him.[12] He formed the view that the witness was unreliable, untrustworthy and lacking in veracity. This opinion was not challenged by defence counsel. It might thus be accepted that it was a view that was reasonably open to the prosecutor.
[12]See R v Kneebone (1999) 47 NSWLR 450, 460–61[49]–[51]; R v O’Brien (1996) 66 SASR 396, 398–9; R v Armstrong [1998] 4 VR 533, 537–8.
But even were it possible to say that the prosecutor’s failure to call Andrew McKean was wrong, in the circumstances of this case it would be impossible to conclude that the failure occasioned any substantial miscarriage of justice.[13] As we have said, the applicants’ counsel contended that Andrew McKean’s evidence was important principally to the element of consent, notwithstanding that consent was not put in issue at the trial. It is likely that the introduction of his evidence would, however, have supported the prosecution’s case that sexual activity occurred (in circumstances where the defence contention that no sexual activity occurred was unsupported by any evidence).[14] Given that is so, there is no prospect that Andrew McKean’s evidence could have led the jury to have a reasonable doubt about the applicants’ guilt.[15] And we note in any event that the jury already had before them the evidence of Berenice and David Rathgen — neither of whose evidence was (or realistically could have been) attacked as being unreliable, untrustworthy or incapable of belief — bearing on the issue of consent, yet nonetheless convicted the applicants.
[13]Criminal Procedure Act 2009, s 276(1).
[14]There were no records of interview before the jury, and no evidence was called for the defence. Counsel for the applicants successfully applied for the exclusion of the records of interview of their clients. We note, however, that in his record of interview conducted on 6 April 2015, McKean in effect denied any sexual activity with JAL or observing any sexual activity with her. Howard, interviewed the same day, told police that he left the group, but thought that McKean was with the group when he heard a female and male having sex with ‘pleasure noises’. He denied any sexual activity, or observing any sexual activity, with JAL, stating he was a ‘gay man’ and not sexually interested in females. Notwithstanding these denials to police, however, the applicants’ counsel made a forensic choice to have the records of interview excluded at trial.
[15]Baini v The Queen (2012) 246 CLR 300, 480 [30] (‘Baini’); Andelman v The Queen (2013) 38 VR 659, 677-8 [85] (‘Andelman’).
Ground 1 is wholly devoid of substance. Before leaving the ground, however, there are two final matters that we wish to mention.
First, counsel for Howard drew attention to the fact that s 38 of the Evidence Act 2008 gives prosecutors ‘greater latitude … to treat a witness as unfavourable and cross-examine them about parts of their evidence which contradict, or sit uneasily, with the prosecution case’. In our view, however, the fact that a prosecutor must resort to cross-examining an unfavourable witness rarely advances the case of an accused. We cannot see that it could have done so in the instant case.
Secondly, it is noteworthy that counsel for the applicants did not ask that Andrew McKean be made available for cross-examination.[16] It might thus be inferred that counsel considered that any evidence that he could give was unlikely to advance the defence cases in any significant respect.
[16]See Whitehorn, 664 (Deane J); R v Foley (1984) 13 A Crim R 29, 35 (Starke J), 37–8 (Murphy J), 38 (Hampel J); R v Komornick [1986] VR 845, 853 (Kaye and Beach JJ).
Ground 2 — The judge’s directions under s 43 of the Jury Directions Act
As he was asked to do by counsel, in his charge to the jury the judge gave a direction pursuant to s 43 of the JDA. Section 43 provides:
43 Direction on prosecution not calling or questioning witness
(1) If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution—
(a) was reasonably expected to call or question the witness; and
(b) has not satisfactorily explained why it did not call or question the witness.
(3) In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution’s case.
In the written case, counsel for Howard submitted that Andrew McKean’s evidence ‘would have been relevant primarily to the question of consent’. Both counsel contended, however, that his evidence went to other salient matters, including the initial meeting at the community centre; the walk to the residence where the Ford was located; his presence initially in the Ford; and the walk back to Coles with JAL.
Counsel for the applicants submitted that, before the judge could have given a direction under s 43, he must have been satisfied the prosecution ‘was reasonably expected to call or question the witness’ and there was no satisfactory explanation for the prosecution failing to do so. Further, counsel for McKean contended that, while the jury were instructed that it was a matter for them to determine whether the prosecution had a satisfactory explanation for not calling Andrew McKean as a witness — and that if they decided that the prosecution did not provide a satisfactory explanation, they could conclude that his evidence would not have supported the prosecution case — the judge did not explicitly instruct the jury as to why the prosecution should have called him, contrary to the model direction in the Charge Book.[17]
[17]Judicial College of Victoria, Victorian Criminal Charge Book. The model charge (at 4.10.1.2) is in the following terms:
In this case, you may have expected that the prosecution would have asked [name of witness] to give evidence. However, they chose not to do so.
[Explain reasons why the prosecution should have called the witness, and possible reasons for their failure to do so.]
It is for you to determine whether the prosecution had a satisfactory reason for not asking [name of witness] to give evidence. If you conclude that the prosecution did not have a satisfactory reason for failing to call [name of witness], then you may conclude that [his/her] evidence would not have helped the prosecution.
Given the prosecutor’s explanation for failing to call Andrew McKean, the judge’s decision to direct the jury under s 43 was somewhat benevolent. The judge having given the direction, however, it could only have redounded for the benefit of the applicants.
Moreover, we regard the direction given by the trial judge as conforming to the requirements of s 43. His Honour instructed the jury as follows:[18]
I now direct you on this matter of Andrew McKean not being called as a witness. In this case, you may have expected the prosecution would have asked Andy McKean to give evidence in this case. However, they chose not to do so. Mr Andy McKean was with the two accused men when they met the complainant for the first time, that is, [JAL], for the first time at the community centre in [town] on 4 April 2015.
He was also with them on the walk back to [the residential premises]. He was initially with them when they were all, all four of them, that is, [JAL], Andy McKean and the two accused men, were the maroon Ford at the back of [the residential premises]. He then left and returned after the alleged offending and then he walked [JAL] from [the residential premises] to Coles. So he is around all of these events.
The possible reasons for not calling Andy McKean may include the unavailability, his unavailability, or his failure to cooperate with the prosecution in coming to court. You have heard the evidence from Mr Benbow about the arrangements that had been made for Andy McKean to come to court. You have also heard his evidence that he, Mr Benbow, thought that Andy McKean was an unreliable and untruthful witness.
It is for you to determine whether the prosecution had a satisfactory reason for not asking Mr Andy McKean to give evidence. If you conclude that the prosecution did not have a satisfactory reason for failing to call Mr Andy McKean, then you may conclude that his evidence would not have helped the prosecution case.
[18]Emphasis added.
It will be appreciated from the foregoing passage that the judge directed the jury that they may have expected the prosecution to call Andrew McKean (but that the prosecution did not do so), and gave a reason why the jury might have had that expectation — ‘he is around all these events’. The trial judge then set out possible reasons for the prosecution not calling the witness, and directed the jury that if they concluded that the prosecution did not have a satisfactory reason for failing to call him, then they ‘may conclude that his evidence would not have helped the prosecution case’. As we have said, so much conforms to the requirements of s 43 (and, for that matter, that part of the model direction in the Charge Book which suggests that the trial judge should explain reasons why the prosecution should have called the witness).
For these reasons, there is no merit in the second ground.
Ground 3 — Evidence as to Andrew McKean’s unreliability
So far as ground 3 is concerned, there is some substance in the contention that the trial judge ‘erred in permitting the prosecutor to lead evidence that Andrew McKean was an unreliable and untruthful witness’. In our opinion, however, that error did not occasion a substantial miscarriage of justice.
Prior to the informant, Detective Benbow, being called to give evidence, the prosecutor told the judge that counsel were ‘not able to come to an exact agreement on what I’m allowed to ask Acting Detective Sergeant Benbow in regards to the reasons why Andy McKean has not been called’. In the course of ensuing discussion, counsel for McKean in effect submitted that Detective Benbow’s view that Andrew McKean is ‘not truthful’ was inadmissible opinion evidence. The effect of the judge’s informal ruling on the issue, however, was to permit the informant to offer a view that Andrew McKean was untruthful.
In the course of Detective Benbow’s evidence, the prosecutor elicited the fact that Andrew McKean had made two VARE ‘statements’. The evidence then continued:
All right. Did you form a view as to the evidence that was given in those two statements?---Yes, I did.
What was the view that you formed?---Oh, I formed a view that there was – it was unreliable and untruthful.
All right. And that was based on the contents of those two statements, is that fair to say?---That’s correct.
All right. There was then an opportunity later for evidence to be given a pre-hearing known as a committal by Mr Andrew McKean, is that fair to say?---That’s correct.
And you’re aware of the content of the evidence that he gave at that pre-hearing committal procedure?---Yes, I am.
And based on the contents of that evidence, together with the two statements, what was your opinion then of the evidence given by Andrew McKean?---Ah, the unreliability of it continued and, um, he was still – in my opinion, untruthful as the story changed.
In our opinion, Detective Benbow should not have been permitted to express the opinion that Andrew McKean’s VARE and committal evidence was ‘unreliable’ and ‘untruthful’. His opinion about the reliability or truthfulness of Andrew McKean’s evidence simply was inadmissible.[19]
[19]See Evidence Act 2008, ss 76, 77, 78 and 79.
Further, if Detective Benbow’s evidence could properly be characterised as ‘credibility evidence’ — on the basis that it impinged upon Andrew McKean’s truthfulness and reliability[20] — it was inadmissible also on that basis.[21]
[20]Dupas v The Queen (2012) 40 VR 182, 255 [265].
[21]See Evidence Act 2008, ss 101A and 102. See also s 108A(1)(a), but query whether Detective Benbow’s evidence that he had regard to the content of Andrew McKean’s two statements and committal evidence amounts to ‘evidence of a previous representation [which] has been admitted in a proceeding’.
Notwithstanding that Detective Benbow’s evidence was wrongly admitted, however, we are unable to conclude that its wrongful admission could have occasioned a substantial miscarriage of justice. In our view, the evidence can have had no effect on the outcome of the trial. Plainly, the jury’s verdict in the instant case must have flown from an acceptance of JAL’s evidence (notwithstanding the full-blooded attack launched by defence counsel on the credibility and reliability of her evidence). Given that is so, it is impossible to say that the jury might have entertained a reasonable doubt about the applicants’ guilt had the error not have been made.[22] Indeed, at best, Detective Benbow’s evidence impugned the credit-worthiness of the evidence of a witness who was not called, in circumstances where the defence gained the benefit of a direction under s 43 of the JDA with respect to that uncalled witness.
[22]Baini, 480 [30]; Andelman, 677 [85].
Ground 3 cannot succeed.
Conclusion
In light of the foregoing, both applications for leave to appeal against conviction must be refused.
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