Corfield v Police - [2017] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CORFIELD v POLICE
[2017] SASC 170
Judgment of The Honourable Justice Stanley
23 November 2017
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appeal against conviction and sentence for one count of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) following trial by a magistrate.
Three men were crossing a Hotel carpark when the appellant, who was standing next to a motor vehicle talking to a female, became enraged by a pejorative remark concerning the motor vehicle, made by one of the three men. A verbal altercation ensued before the appellant obtained a metal pole from the motor vehicle and ran back towards two of the men. He first encountered the complainant who was standing apart from the other two. The complainant was holding a beer bottle. The appellant allegedly swung the pole, striking the complainant in the face. The appellant’s case was that he swung the pole in self-defence as one of the men verbally threatened him and positioned the beer bottle in a threatening manner.
At issue on appeal is, inter alia, whether the prosecution failed to call a material witness, being the female with whom the appellant had been talking next to the motor vehicle.
Held: Appeal against conviction allowed. The verdict of guilty and the sentence of imprisonment is set aside. The appellant is to be retried.
1. Intoxication could not be a legitimate basis for excluding the witness’s evidence given that the prosecution was content to rely on the evidence of another witness who was admittedly intoxicated at the time. The prosecutor erred in not speaking with the witness and as a result, there were not established identifiable circumstances of the witness’s unreliability or truthfulness (at [37]).
2. It is no answer that it was open to the defence to call the witness (at [38]).
Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) s 42, referred to.
Richardson v The Queen (1974) 131 CLR 116; The Queen v Apostilides (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450; R v O’Brien (1996) 66 SASR 396, applied.
R v Manning [2017] QCA 23; R v Shaw (1991) 57 A Crim R 425, considered.

CORFIELD v POLICE
[2017] SASC 170
Magistrates Appeal: Criminal
STANLEY J.
Introduction

This is an appeal against conviction and sentence.
The appellant was tried before a magistrate on a charge of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The circumstances of the aggravation was alleged to be the use of an offensive weapon.
The prosecution case was that three men, the complainant Trevor Edwards, his son Sam Edwards and Sam’s friend Andrew Neil, were crossing the carpark of the Emu Hotel at Morphett Vale when the appellant, who was standing next to a motor vehicle talking to a female, Samantha Mansell, became enraged by a pejorative remark concerning the motor vehicle, made by one of the three men. The appellant ran towards the three men shouting at them to “keep walking”. When he was near the men, a verbal altercation ensued before the appellant ran back to the motor vehicle, obtained a pole from the vehicle and ran back towards Sam Edwards and Andrew Neil. The magistrate appears to have found the pole was 100 centimetres in length, but in fact it is closer to 60 centimetres. Before he reached them, however, he came upon the complainant who was standing apart from the other two, holding a carton of beer in his hands. It was alleged the appellant swung the pole, striking the complainant in the face. He then ran towards the other two, at which point Sam Edwards threw a bottle at the appellant which missed him. Sam Edwards then kicked the appellant to the ground where a scuffle ensued between the appellant and the two men.
One of the security staff at the hotel, Mr Schueller, intervened to separate the men. The appellant went back to the motor vehicle with the hotel duty manager, Mr Field, who had arrived on the scene. Mr Field was distracted by the approach of the complainant and his injuries, and the appellant left the scene. He was stopped by another security guard, Mr Simmonds, who told him to wait as police had been called. However, the appellant ran off. There was a dispute on the evidence as to whether the appellant was picked up by a man named Cooper and given a ride back to the appellant’s home. The magistrate appears to have rejected the appellant’s version and accepted the evidence of Cooper that he did indeed get driven home.
Later that day the appellant was spoken to by police. In his record of interview he said that he and Samantha Mansell were standing next to an acquaintance’s car when four men walking by starting yelling at him and calling him names. He told them to keep walking, but they started to approach him and one of the men said something like, “I’m going to bash him” and held a beer bottle as if he was going to hit the appellant. The appellant did not want any trouble, but felt he had no chance, was outnumbered, and if he tried to fight them they would have bashed him, so he grabbed what he could from the car and told the men to “fuck off” because he thought that would deter them and they would walk away. The appellant said that one man threw a beer bottle at him, but missed. He stated that he swung the pole to defend himself and that it must have hit someone. He said he was kicked to the ground and “boot-bashed” by all the men.
At trial, it was not in issue that the complainant had been hit with the pole by the appellant, that the complainant had been harmed, or that the pole was an offensive weapon. The issue was whether the appellant had intended to hit the complainant or had acted in self-defence.
The magistrate accepted the complainant, his son and Andrew Neil as witnesses of truth. He was prepared to rely upon the evidence of the complainant and his son Sam and, to a lesser extent, Mr Neil, to make findings of fact. The magistrate placed less reliance on the evidence of Mr Neil due to his admitted intoxication.
The magistrate heard evidence from Mr Schueller and Mr Simmonds, as well as Mr Field. There was also evidence from police officers of the attendance at the appellant’s home address and a subsequent search of the premises during which a pair of blood-stained beige pants, a single blue training shoe and a black Nike singlet were discovered in one of two yellow plastic bags found in a wheelie bin.
The magistrate was prepared to accept Mr Schueller’s evidence of his initial observations where they were consistent with Sam Edwards’ account of the scuffle, but otherwise thought his evidence was somewhat unreliable given the distance he was from the men when he first observed an altercation, the poor lighting, the fact he was rushing to the scene, and the very short time it took him to close the distance. The magistrate appears to have rejected Mr Schueller’s evidence that he observed all three men strike the appellant.
The magistrate appears to have accepted the evidence of Mr Field that he took the appellant away from the scuffle after Mr Schueller had broken it up and led him towards the motor vehicle at which point the complainant was approaching aggressively and Mr Field turned to deal with him. When he turned his attention back to the car, the appellant was gone.
The magistrate was unimpressed by the evidence of Mr Cooper, who he found to be a poor, unreliable and untruthful witness.
At the trial, the police prosecutor declined to call Ms Mansell as a witness. The magistrate refused applications made by counsel for the appellant to invite the police prosecutor to call Ms Mansell. Ms Mansell was not called to give evidence by either the prosecution or defence.
The appellant did not give evidence at his trial.
The magistrate made the following findings beyond reasonable doubt:
[The complainant], Sam and Andrew met at the Emu Hotel for some drinks after being out earlier. All three were affected by alcohol to varying degrees. [The complainant] was least affected, Andrew most affected;
All three men left the Hotel and walked to the nearby ‘On the Run’ where Sam and Andrew had something to eat;
At approximately 1:00 a.m. they left on foot and were on their way back to Sam’s residence and passed through the Hotel carpark;
[The complainant] was carrying a half full carton of Beck’s beer. Sam and Andrew were both drinking from Beck’s stubbies;
They observed the [appellant] and the girl standing near to the white Utility vehicle, a ‘Great Wall of China’ dual cab. At this point they were approximately 30 feet away;
Sam and Andrew made derogatory comments about the [appellant’s] vehicle along the lines of it being a ‘piece of Chinese crap’ and ‘a piece of shit’. They did not make personal comments about the [appellant] or the girl;
They were not otherwise acting aggressively;
The [appellant] immediately became irate and agitated, trying to get to the two men, but was initially held back by the girl;
The [appellant] broke free and sprinted towards them over a distance of approximately 40 feet, yelling out as he did so for them to “keep walking”;
Sam and Andrew stopped;
[The complainant] dropped back a bit and attempted to defuse the situation by telling the defendant “It’s okay mate, they’re walking”;
The [appellant] passed [the complainant], approached the two men and a verbal altercation ensued. Sam told the [appellant] that he did not want to fight;
None of the three men were ‘aggro’ or looking for a ‘blue’;
The [appellant] sprinted back to the utility, opened the front driver’s door and pulled out a metal pole (Exhibit P 10);
The [appellant] again ran towards Sam and Andrew. [The complainant] was to his right, a short distance from them, holding the carton of beer, when he was struck to the face by the [appellant] with the pole without warning or provocation, causing significant injuries, as later observed by Dr Chong;
The [appellant] continued towards Sam and Andrew, with the bar raised above his head in a threatening gesture;
Sam then threw his bottle at the [appellant]. It missed its mark and did not deter him. The bottle did not land in the tray of the utility. Sam was acting in self-defence;
Sam did not hold his bottle upside down;
Neither Sam nor Andrew challenged the [appellant] to a fight;
Sam ‘pushed’ or kicked the [appellant] to the chest, with his foot. Sam was acting in self‑defence;
The [appellant] fell backwards onto the ground and lost control of the pole, which went flying through the air;
The three men became embroiled in a wild scuffle, in which Sam and Andrew ended up on top of the [appellant]. Sam struck the [appellant] but he was not intentionally kicked;
Schueller raced to the scene and broke up the affray, separating the men from the [appellant];
Sam and Andrew behaved aggressively towards Schueller. The scene was dramatic, loud and chaotic;
Field, who was the on duty manager and first aid officer, took the [appellant] to the utility. [The complainant] angrily approached. Field became concerned with [the complainant’s] injuries, turning his attention to him;
The [appellant] left the vehicle. Simmonds followed, asking him to remain and speak to the police. The [appellant] refused, claiming he was fearful that the men would bash or boot bash him;
At some point an ambulance and police attended the scene;
Police later attended the [appellant’s] home address and placed him under arrest;
A search was conducted and police located a pair of pants and a single shoe that the [appellant] had been wearing at the time of the incident; and
The [appellant] voluntarily participated in a recorded interview, in which he claimed that he had acted in self-defence.
The magistrate found the appellant guilty of the charge. In finding the charge proved beyond reasonable doubt, the magistrate was satisfied that the prosecution excluded as a reasonable possibility self-defence, the defence of Ms Mansell and the defence of property, being the motor vehicle.
He sentenced the appellant to two years imprisonment, with a non-parole period of 14 months. The magistrate declined to suspend the sentence or to order that it be served on home detention.
Grounds of appeal
There are four grounds of appeal in relation to the appellant’s conviction:
1.that the prosecution’s failure to call Ms Mansell denied the appellant a fair trial and led to a miscarriage of justice;
2.that the magistrate erred in finding the appellant was not acting for defensive purpose and, in particular, misdirected himself or failed to direct himself in relation to intoxication;
3.that the magistrate misdirected or did not direct himself in relation to the use that could be made of post-defence conduct; and
4.that the verdict was unsafe and unsatisfactory.
There are three grounds of appeal in relation to sentence:
1.that the magistrate erred in taking into account, or treating as an aggravating feature, the fact that the appellant had not participated in any treatment programs;
2.the magistrate erred in finding that the appellant’s prospects for rehabilitation were clouded and uncertain; and
3.that the sentence was manifestly excessive.
The prosecution’s failure to call Ms Mansell denied the appellant a fair trial that led to a miscarriage of justice
This ground raises an antecedent issue.
This appeal has been instituted pursuant to s 42 of the Magistrates Court Act 1991 (SA) (Magistrates Court Act). The nature of an appeal pursuant to s 42 is wider than that of an appeal against a jury verdict.[1] The difference was explained by Perry J in Taylor v Hayes where he said:[2]
In Smith v Samuels (1976) 12 SASR 573 at 587, Mitchell and Zelling JJ repeat with approval the dictum of the Full Court (Napier, Richards, and Piper JJ) in Hunter v Walsh [1928] SASR 336 at 339 as follows:
"The plain meaning and effect of these provisions (ie the relevant provisions of the Justices Act relating to appeals) is to impose upon the Supreme Court the duty of forming and expressing its own opinion upon the effect of the evidence to the best of its ability upon the material available for that purpose."
In contrast with those observations as to the nature of an appeal under the Justices Act, a verdict of a jury should not normally be set aside on appeal unless, apart from error of law, it is "unreasonable or cannot be supported having regard to the evidence" or unless there was for any reason, a miscarriage of justice: see s 353(1) of the Criminal Law Consolidation Act. In such a case the question is whether the court is of the view that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, or whether it would be "unsafe, unjust or dangerous" to allow the verdict to stand. It is not sufficient to interfere simply because the appeal court disagrees with the jury's conclusion: see Whitehom v The Queen (supra), and Chamberlain v The Queen (No 2) (1984) 153 CLR 521. While it is the responsibility of the Court of Criminal Appeal independently to assess the evidence (see Morris v The Queen (1987) 163 CLR 454), in doing so the function of the court is clearly quite different from that imposed upon a judge hearing a justices appeal.
It follows from the above observations that the scope of an appeal under the Justices Act is "not less but larger" than the scope of an appeal under the Criminal Law Consolidation Act: see Ghys v Crafter (supra) per Napier J at 32.
While I suppose that there is no harm in using words such as "unsafe, unjust or unsatisfactory" or "cannot be supported having regard to the evidence", or the words "miscarriage of justice" in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate's findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
[1] Smith v Samuels (1976) 12 SASR 573 at 587; Taylor v Hayes (1990) 53 SASR 282; T v The Medical Board of South Australia (1992) 58 SASR 382; R v Stevens [2010] SASCFC 1, (2010) 107 SASR 456; Police v Williams [2014] SASC 177 at [180].
[2] (1990) 53 SASR 282 at 291.
While Perry J was concerned with the provisions of the Justices Act 1921 (SA), the same considerations apply to the operation of s 42 of the Magistrates Court Act. In R v Taylor,[3] in reasons with which Kelly and Peek JJ agreed, I said:[4]
In R v Stevens, Sulan J considered the nature of the appeal pursuant to s 269Y. He analysed the subsection as conferring a right of appeal that was wider in its ambit than an appeal stricto sensu. He equated the right of appeal conferred by s 269Y with the right of appeal to this Court created pursuant to s 42(5) of the Magistrates Court Act 1991 (SA). That right of appeal has been characterised as an appeal by way of rehearing. That requires a court on appeal to reconsider the materials before the trial judge along with such other materials as it may decide to admit and then make up its own mind. However in doing so the court is not to disregard the judgment appealed from, but must carefully weigh and consider it. However, if on full consideration, the court concludes the judgment was wrong, then the court must substitute for the judgment under appeal any order it considers that the court should make.
(footnotes omitted.)
[3] [2014] SASCFC 112.
[4] [2014] SASCFC 112 at [18].
In considering that question, this Court will observe the principles in Fox v Percy.[5] This was explained in Martin v Department of Transport, Energy and Infrastructure,[6] where White J said:[7]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.
(footnote omitted.)
[5] [2003] HCA 22, (2003) 214 CLR 118.
[6] [2010] SASC 141, (2010) 269 LSJS 403.
[7] [2010] SASC 141 at [38], (2010) 269 LSJS 403 at 410.

The principles applicable to the determination of magistrates appeals were considered recently in Police v Rosales,[8] where Peek J disapproved an approach to an appeal pursuant to s 42 grounded in terms of “miscarriage of justice” which he considered might mistakenly be thought to connote a de facto importation of the common form proviso in s 353(1) of the CLCA into an appeal brought pursuant to s 42 of the Magistrates Court Act. As Peek J observed, that cannot be lawfully done.[9] The question for the Court considering an appeal pursuant to s 42 of the Magistrates Court Act is whether, notwithstanding that an error was made in the Magistrates Court, this Court should not interfere with the magistrate’s judgment, where this Court is of the opinion that the magistrate’s judgment was inevitable, despite the error.
[8] [2017] SASC 118.
[9] [2017] SASC 118 at [96].
That being the approach of this Court to the determination of an appeal pursuant to s 42, I turn to consider the principles relevant to a prosecutor’s decision not to call a material witness to give evidence at trial.
Those principles are:
1.A prosecutor in deciding how the prosecution case will be presented and what evidence will be adduced, has the responsibility of ensuring that the prosecution case is presented with fairness to the accused.[10]
2.In deciding whether to call a witness the prosecutor may be required to take into account many factors, including whether the evidence of a particular witness is essential to the unfolding of the prosecution case, whether the evidence is credible and truthful, and whether in the interests of justice it should be subject to cross-examination by the prosecution.[11]
3.The prosecutor should decide in the particular case what are the relevant factors and in the light of those factors determine the course which will ensure a proper presentation of the prosecution case conformably with the dictates of fairness to the accused.[12]
4.To avoid a miscarriage of justice, a prosecutor should call all available material witnesses. They include those 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 eyewitnesses of any events which go to prove the elements of the crime and will include witnesses notwithstanding that they give accounts inconsistent with the prosecution case.[13]
5.However, the prosecutor has a discretion not to call in the prosecution case an eyewitness if the prosecutor judges that there is sufficient reason for not calling the witness, as, for example, where the prosecutor concludes the witness is not reliable and trustworthy or is otherwise incapable of belief. This applies even to a witness who is essential to the unfolding of the narrative on which the prosecution is based.[14]
6.A decision whether or not to call a person who can give material evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it. A mere suspicion about the unreliability of the evidence is insufficient.[15]
7.In most cases where a prosecutor does not wish to lead evidence from a person able to give material evidence but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defendant and then, if necessary, re-examined.[16]
8.Frequently, eyewitnesses will be close or have been close to the accused and possibly to the victim. That does not mean that they should not be called by the prosecution. It is where it is apparent that the eyewitness is so devoted to the accused and his cause that she will not tell the truth as to what happened that the question of the prosecution not calling that witness will arise.[17]
9.Overriding all the particular guidelines and formulations is the general obligation imposed upon a prosecutor to act fairly in the discharge of the function which he performs. That is the guiding and fundamental principle to be kept in mind as new and unusual situations emerge.[18]
10.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.[19]
[10] Richardson v The Queen [1974] HCA 19, (1974) 131 CLR 116 at 119.
[11] Richardson v The Queen [1974] HCA 19, (1974) 131 CLR 116 at 119.
[12] Richardson v The Queen [1974] HCA 19, (1974) 131 CLR 116 at 119.
[13] Whitehorn v The Queen [1983] HCA 42, (1983) 152 CLR 657 at 674.
[14] Richardson v The Queen [1974] HCA 19, (1974) 131 CLR 116 at 121; Whitehorn v The Queen [1983] HCA 42, (1983) 152 CLR 657 at 674.
[15] The Queen v Apostilides [1984] HCA 38, (1984) 154 CLR 563 at 576.
[16] The Queen v Apostilides [1984] HCA 38, (1984) 154 CLR 563 at 576.
[17] R v Kneebone [1999] NSWCCA 279 at [102], (1999) 47 NSWLR 450 at 470-471.
[18] Whitehorn v The Queen [1983] HCA 42, (1983) 152 CLR 657 at 675.
[19] The Queen v Apostilides [1984] HCA 38, (1984) 154 CLR 563 at 575.
The application of these principles was considered by the Court of Criminal Appeal in R v O’Brien[20] where Doyle CJ considered that it would be appropriate for the prosecutor to decline to call a material witness as part of the prosecution case, or to call the witness so that he or she may be cross-examined by the defence, where the prosecutor considers the evidence unreliable and untrustworthy. Doyle CJ endorsed the approach taken in R v Lawson[21] where Sholl J said that a prosecutor should call a witness if the witness is a witness to an important aspect of the case, especially the vital facts in issue, unless for strong and satisfactory reasons the prosecutor is of the opinion that the witness’ testimony is so unreliable as to be likely to lead to a miscarriage of justice, contrary to the public interest, if it is led for the prosecution, and without the opportunity of cross-examination by counsel for the prosecution. Sholl J thought that the prosecutor may properly form that opinion where the evidence is reasonably thought to be dishonest or absurd or grossly unreliable or quite untruthful.[22]
[20] (1996) 66 SASR 396.
[21] [1960] VR 37.
[22] [1960] VR 37 at 40.
Doyle CJ pointed out that a miscarriage of justice may result from the wrong exercise of judgment by a prosecutor not to call a material witness but even where there has been no error of judgment by the prosecutor the absence of testimony from a witness may nevertheless lead to a miscarriage of justice.[23]
[23] R v O’Brien (1996) 66 SASR 396 at 398.
On appeal, the Court received an affidavit of the police prosecutor. She explained the reasons for her decision not to call Ms Mansell to give evidence as part of the prosecution case. She said:[24]
When preparing for the trial, I decided not to call Ms Mansell. I had formed the view that she could not be relied upon to give honest and reliable evidence, based on the following matters arising from her statement to Police...
a)   Ms Mansell’s recount of the incident was inconsistent with all of the other witnesses’, including the defendant’s, in important and material ways. Her statement was generally vague, and she appeared to be withholding the finer details of the incident. That is, she claimed to be present throughout the incident, yet did not mention having seen the defendant retrieve an iron bar from his vehicle, strike anybody with an iron bar, or wave an iron bar. She described the incident as a “fight breaking out”, but did not say who had started the fight. She did not mention seeing anyone strike, or otherwise harm the victim.   She said that she would not recognise the victim or the other witnesses if she saw them again. She said that when the fight broke out she ran inside to alert the venue’s security guards, but then saw that they were already on their way out. However, Mr Field and Mr Schueller, two security guards who witnessed the incident, said in their statements that Ms Mansell had been standing near the defendant’s vehicle during the altercation.
b)   Ms Mansell was friends with the defendant. She had been in his company at the time of the incident. She seemed to me to be sympathetic towards the defendant.
c)   Ms Mansell said that she was “pretty intoxicated” when she witnessed the incident, and that she couldn’t remember too much of what happened.
Ms Mansell made her statement to Police just over 3 weeks after the incident. I did not attribute the vagueness of her statement to the time that had passed since the incident. I do not consider it to be a particularly long time in the context of this matter.
One of the police officers who investigated the incident (although I do not recall who) told me that Ms Mansell did not want to get involved in these proceedings. I took this into account when deciding whether to call her.
At no stage did I meet with Ms Mansell, or otherwise correspond with her in relation to her evidence. I did consider proofing her, but I decided not to because I knew that I would want to challenge her evidence, and I did not think that it would be useful or appropriate to do so while proofing her.
[24] Affidavit of Cara Louise Bailey sworn 18 August 2017.
Ms Mansell’s statement given to the police indicated that she had been at the Emu Hotel with some friends to see a band. Before she arrived at the hotel she had had a few drinks. At the hotel she continued drinking but could not remember how much. During the night she went out to a utility with her friend, the appellant. She said they were talking for about 10 to 15 minutes inside the vehicle which was located in the rear car park. She said she alighted from the vehicle at which time she noticed a group of three or four men walking through the car park coming from the direction of the service station. When they were about 10 metres away they started yelling as if they were trying to start a fight. She said the appellant said something like “What’s your problem?” but they kept yelling and walking towards the car and then one of them threw an object towards them that was perhaps a beer bottle. She described a fight breaking out. She said she thought that the men came over to the appellant and punches were thrown and they were on the ground. The appellant was on the bottom where he was being kicked and punched. She said she tried to get one of them off but she couldn’t so she decided to get the hotel security staff to intervene but they were already on their way out. Following this she said she went back inside the hotel and went home not long afterwards. She said she was pretty intoxicated, it was a long time ago and she could not remember much of what happened. Neither could she recognise any of the men. This statement was given a little over three weeks after the relevant events.
The police prosecutor indicated to defence counsel that the prosecution was not going to call Ms Mansell. The prosecutor provided the defence with a copy of Ms Mansell’s statement and indicated she would make her available to the defence if they wished to call her.
On the third day of trial the prosecutor observed Ms Mansell in conversation with defence counsel outside the courtroom. The defence did not subsequently call Ms Mansell to give evidence as part of the defence case.
On the hearing of the appeal counsel for the respondent conceded that Ms Mansell was a material witness. In my view that concession was properly made. In R v Manning[25] the Queensland Court of Appeal said that a narrow construction of the meaning of “material witness” should not be adopted and all the available admissible evidence which could reasonably influence a jury on the question of guilt or otherwise of an accused is capable of answering the description “material”.[26]
[25] [2017] QCA 23.
[26] R v Manning [2017] QCA 23 at [19].
Ms Mansell was a direct eyewitness to the critical events relevant to the charge for which the appellant was being tried. There were two features of her statement taken by the police which I consider relevant. First, as the prosecutor identified, what was conspicuously absent from the statement was any reference to the appellant retrieving the pole from the vehicle or striking anybody with it. It was not in issue that the appellant had struck Trevor Edwards in the face with the pole. Second, her statement was consistent with some aspects of the evidence given by the security officer, Mr Schueller. He gave evidence that he observed a fracas in the car park with three men jumping on a person and attacking him. He ran over to stop the fight. There was one male laying on his back and three other males on top of him.
The magistrate accepted some parts of Mr Schueller’s evidence and rejected other parts. He considered the evidence that all three men struck the defendant somewhat unreliable. The magistrate was only prepared to accept Mr Schueller’s evidence of his initial observations of the group where that evidence was consistent with Sam Edwards’ account of those events.
In my view, the prosecutor erred in deciding not to call Ms Mansell to give evidence. I am not in a position to conclude that Ms Mansell’s evidence would not be unreliable or untruthful, however, I am satisfied that as the matter stood, the prosecutor was not in a position to conclude that Ms Mansell could not be relied upon to give honest and reliable evidence. The terms of the police statement were insufficient to found such a conclusion. While the absence of any reference to the appellant wielding the pole was of justifiable concern, I am of the view that was a matter that required further inquiry on the part of the prosecutor by speaking directly to Ms Mansell before she could decide that her evidence was so unreliable or untruthful that she should not be called as a prosecution witness or be made available to be cross-examined by the defence. It might have been that further discussion with Ms Mansell could have explained the failure to refer to the accused wielding a pole in the police statement. It is significant that in O’Brien the prosecutor spoke to the witness and proofed him before concluding that there was a clear allegiance to the accused on the part of the witness. That is the very thing the prosecutor in this case failed to do.
Moreover, as I have noted, parts of Ms Mansell’s statement were consistent with the evidence of Mr Schueller. Further, while there might have been a basis for the prosecutor to consider that Ms Mansell was a friend of the appellant, and clearly was in his company at the time of the incident, there was no basis for her to conclude that she was “sympathetic” towards the appellant in a way that might have rendered her evidence unreliable. In R v Shaw[27] the Victorian Court of Criminal Appeal rejected a submission that a witness was unreliable in the absence of the prosecutor having, by an appropriate technique, such as conferring with the witness, satisfied himself properly of the witness’ capacity to give reliable and truthful evidence. In relation to a submission that the prosecution should be able to disregard witnesses inconsistent with the prosecution case, Nathan J said:[28]
… [E]yewitnesses do not belong to a camp, but are within the class of persons from whom juries expect and are entitled to hear. The characterisation of witnesses being in “camps” is unfortunate. It necessarily implies that the prosecutor might choose to call only those witnesses favourable to his camp. This is an absolute derogation of a prosecutor’s responsibilities.
[27] (1991) 57 A Crim R 425.
[28] (1991) 57 A Crim R 425 at 450.
While it was relevant for the prosecutor to observe that Ms Mansell described herself as being “pretty intoxicated” on the night, that could not be a legitimate basis to exclude her evidence given that the prosecution was content to rely upon the evidence of Mr Neil who also claimed to have been intoxicated at the relevant time. The prosecutor erred in not speaking with Ms Mansell. As a result there were not established identifiable circumstances of Ms Mansell’s unreliability or untruthfulness. At its highest, the information available to her merely raised a suspicion as to the reliability and truthfulness of Ms Mansell. That is not enough to justify the prosecution electing not to call Ms Mansell as a prosecution witness or, at least, making her available for cross-examination. Neither is the reluctance of a potential witness to being involved in a trial. That is far from an uncommon experience. It is the reason for cloaking a court with the coercive power to subpoena a witness.
That error resulted in a material witness not being called. It is not an answer to that proposition to submit that it was always open to the defence to call Ms Mansell.[29]
[29] R v Shaw (1991) 57 A Crim R 425 at 437 and 450; R v Manning [2017] QCA 23 at [27].
In my view this conclusion must result in the appeal being allowed and the verdict of guilty being set aside. The appellant did not receive a fair trial. It is not open to the Court to conclude that his conviction was inevitable notwithstanding the error made. Because this Court cannot know what evidence the material witness might have given, it cannot be satisfied that her evidence may not have created a reasonable doubt in the mind of the trier of fact. This case is distinguishable from O’Brien where the Court of Criminal Appeal concluded that there was no miscarriage of justice because in that case the defence had called the material witness the prosecution had declined to call. In O’Brien the Court was not prepared to conclude that the prosecutor had erred in failing to call the material witness and was satisfied that a miscarriage of justice had not occurred given that the Court had heard the evidence of that witness. In circumstances where the Court did not find that the prosecutor had erred in the decision not to call the witness, the Court held that the accused’s loss of the forensic advantage in being able to cross-examine the witness did not result in a miscarriage.
In this case the evidence of Ms Mansell may have supported the evidence of Mr Schueller and cast some doubt on the evidence of the complainant, his son and Mr Neil. In those circumstances it cannot be said that the verdict of guilty was inevitable.
Conclusion
Accordingly, the appeal must be allowed and the verdict of guilty set aside. The appellant must be retried before another magistrate.
It follows that it is unnecessary to consider the other grounds of appeal against conviction or the appeal against sentence.
I would allow the appeal. I would set aside the verdict of guilty and the sentence of imprisonment. I would order that the appellant be retried before another magistrate.