Director of Public Prosecutions v Midfield Meat International Pty Ltd (Rulings No. 1, No. 2 and No. 3)

[2021] VCC 1568

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00335

DIRECTOR OF PUBLIC PROSECUTIONS

v

MIDFIELD MEAT INTERNATIONAL PTY LTD

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 30 September, 1, 6 October 2021
DATE OF RULING:	1, 6 October 2021
CASE MAY BE CITED AS:	DPP v Midfield Meat International Pty Ltd (Rulings No. 1, No. 2 and No. 3)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1568

RULING
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Subject:CRIMINAL LAW

Catchwords:              Admissibility of Photographs and Videos; Relevance and danger or unfair prejudice; Admissibility of purported admissions of general manager of accused company; Admissions based on hearsay and expressed as opinions; Whether basis of opinion sufficiently exposed; Whether or not prosecution should call witness; Whether proposed evidence material.

Legislation Cited:      Evidence Act 2008 (Vic)

Cases Cited:Bird v Adams [1972] Crim. L. R. 174; The Queen v Apostilides (1984) 154 CLR 563; R v Jenson (2009) 23 VR 591; Whitehorn v The Queen (1983) 152 CLR 657; Anglim & Cooke v Thomas [1974] VR 363; DPP v Mayhoub [2020] VSC 644; Surujpaul v R [1958] 1 WLR 1050; Commonwealth of Australia v Helicopter Resources [2020] HCA 16

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APPEARANCES:	Counsel	Solicitors
For the Accused	Dr D Neal SC with Mr S Russell	FCW Lawyers
For the DPP	Ms M Tittensor SC with Mr D Chisolm	Office of Public Prosecutions

HIS HONOUR:

Ruling No. 1 – Admissibility of photograph and video evidence

Introduction

1Objection is taken by the accused to the prosecution adducing certain photographs and videos in evidence at trial. The basis of the objections are as to relevance and, if relevant, on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice.

The allegations

2The accused, Midfield Meat International Pty Ltd, faces two charges of failing to provide and maintain a safe system of work. The charges arise out of an incident which occurred on 15 December 2017, where a field officer employed by Midfield Meat, Patrick Vincent Smith, was fatally injured whilst working alone in an enclosed cattle yard at a property known as ‘Wandobah’ in Dunkeld.

3On 12 December 2017 Patrick Smith rang Craig Oliver, one of the owners of Wandobah, and requested that he move cattle, owned by Midfield Meat which had been agisted on that property, into holding yards so that they could be drafted and weighed the following Friday. On the morning 15 December 2017, Mr Oliver moved the cattle into the yards in two separate mobs of about 50. He then went to another part of the property to continue shearing.

4Amongst the herd was one bull stag that appeared agitated. Mr Oliver thought that the animal in question was potentially dangerous and that caution would be required in its handling. He believed, however, that Mr Smith was aware of this particular animal because they had noticed it on previous occasions when handling these cattle. He also believed that Mr Smith, as a very experienced stockman, was well capable of handling the animal.

5At 8.39am, Mr Oliver received a call from Mr Smith informing him that Mr Smith was at the yards and was about to commence weighing the cattle. Mr Oliver said that he would be there in about 20 minutes. At 8.53am, Mr Oliver received another call from Mr Smith, which he answered, however there was no response. Mr Oliver assumed it was a pocket dial.

6Mr Oliver got to the yards at about 9.20am to find all of the gates to the yards open, although the cattle remained in the yards. He saw Mr Smith lying on the ground just outside the northern holding yard, near his motor vehicle. He was injured and unconscious. Despite extensive efforts to revive him by emergency services, Mr Smith was pronounced deceased at the scene.

7The bull stag that Mr Oliver had noticed earlier that morning was observed to be in an even more agitated state, pawing the ground, bellowing, and approaching the fences aggressively. It had blood on parts of its legs and hooves. A short video was taken depicting its behaviour and it was then put down.

8At trial, the prosecution will allege that the accused failed to provide and maintain a safe system of work with respect to assessing, identifying and separating dangerous animals. It will allege that employees should not be required to enter enclosed yards with dangerous cattle.

9It will further allege that the accused failed to provide and maintain a safe system of work in that a risk assessment of the enclosed yards needed to be undertaken for the purposes of identifying a safe area or effective escape routes and that another person should have been present to provide backup and assistance in the event of an emergency.

Categories of evidence the subject of objection

10As I perceive it, the objections the subject of the application relate to three categories of photographs, although I will deal with each photograph individually.

·        Category 1 pertains to photographs of the deceased lying in situ, displaying his injuries.

·        Category 2 pertains to photographs of the area outside the northern end of the holding yard which show where the deceased came to rest and his motor vehicle. Those photos show the deceased's body, which is, at that time, covered with a white blanket.

·        Category 3 relates to all other challenged photographs which essentially display the geography of the holding yards, but in some instances show what appears to be blood from the deceased smeared on railings, gates or posts.

11In addition, there were four videos sought to be adduced. Two short videos relate to drone footage providing an overhead perspective as to the yards and the path likely taken by the deceased after he was struck by the bull. One, of 1 min and 18 seconds’ duration, shows the behaviour of the bull stag in an agitated state before it was put down. The last video of 3 mins and 6 seconds’ duration shows the general layout of the northern holding yard.

Submissions

12Underpinning the defence objections to these photographs is the notion that in this prosecution, the occurrence of the death is not an element of the offence, and causation is not a fact in issue. The jury will need to be instructed that the death is relevant only to illustrate the seriousness of the risk to the health and safety of employees that flowed from the alleged failure by the accused company to provide and maintain a safe system of work.

13There is, it was contended, a very real danger that the essential task of the jury may be diverted by the emotional impact of the death and the depiction of the deceased’s body in the photographs.

14The prosecution submitted that the photographs will provide the jury with a critical understanding of the accused's workplace (the holding yards), the dangers to employees and the risk which confronted the deceased, and indeed would confront any employee in like circumstances.

Relevance

15As is often observed, the test to determine relevance set out in s 55 of the Evidence Act 2008 (‘the Act’) creates a low threshold. That provision requires the parties seeking to adduce the evidence to demonstrate that the proposed evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

16In this instance, I have had little trouble in concluding that all of the photographs sought to be adduced are logically connected with an assessment of the facts in issue in this case. Generally speaking, they will enhance the trier of facts’ understanding of the workplace, which will in turn bear upon the safety or otherwise of the system of work in place.

17On that basis, I conclude that all of the photographs sought to be adduced are relevant. Having come to that conclusion with respect to the photographs, I need then to consider the issue of the application of s 137 of the Act.

Admissibility

18In assessing the danger of unfair prejudice, I take it as a given that the jury will follow the directions and guidance provided to them. They will be instructed to approach their task intellectually, without being unduly swayed by emotion.

19That said, I do take Dr Neal SC's point, which, to paraphrase, is that the relevance of Mr Smith's death is conceptually counterintuitive. The charges arise from the death, but the trial is not an inquest into the death.

20It seems to me that the manner of the presentation of the prosecution case should be consistent with the task the jury will be instructed to perform. It was for that reason that I indicated to Ms Tittensor SC during the course of discussion that the photographs of the deceased and his injuries might be best summarised through the pathologist's evidence, or an agreed summary of that evidence, rather than through depiction of those injuries in the photographs.

21I do not see those photographs as being unduly prejudicial in themselves, but I accept that their potential emotional impact has the capacity to divert the jury's focus away from risk and onto the mechanism of Mr Smith's death, which is not what this trial will be about.

22That capacity to divert attention, or to give the evidence greater weight than is warranted, in my view, does constitute a danger of unfair prejudice that outweighs the probative value of the evidence. On that basis, I would exclude the photographs that form what I have described as Category 1. Those photographs comprise photograph 103 and all of the photographs from 208–215. They will be excluded.

23Jumping ahead then to Category 3, I do not see the photographs of the geography of the inside of the holding yard as carrying anything like the same degree of danger of unfair prejudice. Despite the fact that apparent bloodstains can be seen on some of the metal fixtures in the photographs. I do not see that fact as capable of misuse or of overly emotionally impressing the jury.

24The path taken by the deceased to exit the yard is clearly probative of the issue as to whether the workplace was safe. That is so particularly as regards the means of escape. Likewise, damage to chipboard in the yard, shown in photographs and indeed the videos is likely to enhance the jury's understanding of the nature of the workplace and its dangers. Such concern as might arise as to the photographs inviting speculation can, in my view, be readily dealt with by direction.

25On that basis, I will admit the following photographs: photographs 88, 89, 93, 98, 99, 115, 118, 121, 122 and 123. There is no need, in my view, to adduce photograph 124, and I will exclude that photograph. Photograph 126 can be admitted. Photograph 128 is unnecessary and of little probative value and I will exclude it on that basis. Photographs 130, 134 and 135, are admissible. Photographs 156, 158, 159, 160, 162, 163 and 164 are admissible. Photographs 199, 200 and 201 are admissible as simply providing a close-up of a couple of matters that are shown in the video. Photographs 221 and 223 are also admissible.

26The final category (Category 2) relates to what is essentially a hybrid category where the position of the deceased is shown and the deceased's body is shown in the photograph, but covered up. That appears at Photographs 83, 85 and 87. On balance, it seems to me that those photographs should not be admitted or adduced in evidence. The position of the deceased's body will be clear from the aerial photographs and that is sufficient, it seems to me, to enable the jury to have a proper understanding as to where the deceased came to rest.

27Although I do not regard those photographs as unduly prejudicial, invoking the same reasoning as was employed with respect to Category 1 to avoid unduly distracting the jury or diverting their attention, it seems to me that the body of the deceased need not figure in the photographs presented to them.

Videos

28All of the four videos are admissible in my view. The behaviour of the bull/stag after the incident and the geography of the enclosed yards are very much enhanced, in my view, by the videos. Likewise, the aerial photography provides a useful perspective, and as such is clearly probative and admissible.

Conclusion

29The photographs constituting categories 1 and 3 will be excluded. All other photographs and videos are admissible.

Ruling No. 2 – Admissibility of admissions in statement of Dean McKenna

Introduction

30Prior to empanelment, the defence made an application to exclude evidence of what the Crown say are admissions made by Mr Dean McKenna, the general manager of the accused company. Save for one matter, I refused the application and indicated I would provide reasons at a later time. These are those reasons.

Admissions

31Mr McKenna made a statement to police on 30 January 2018. The following paragraphs from that statement are the subject of application:

45.   I believe Pat’s death was preventable. I believe that Pat should have been working with another person on the day. The other person is normally Craig Oliver at this property that helps Pat handle the livestock. I believe Craig was too busy with shearing on his property on that day.

46.   I believe also that the animal in question (that killed Pat) should not have been there due to it being known as a dangerous animal. Both Craig and Pat knew that it was a stag and not a steer.

47.   Every week midfield meets handles stag’s and as soon as they come into our possession we process them at the first opportunity if we are aware they are (a) stag and a dangerous animal.

32Both parties accepted that Mr McKenna had authority to make representations on behalf of the accused company as permitted by s 87 of the Act.

33That seems clear having regard to s 87(1)(a) and (b):

87 Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority …

Accused’s submissions

34Dr Neal submitted that Mr McKenna was not present at the time of the incident giving rise to these charges. He had no personal knowledge of what happened to Mr Smith. The statements in question amount to no more than the expression of hindsight beliefs based on hearsay information.

35It was submitted that the opinions expressed in both of those paragraphs lacked a foundation that adequately exposes the reasons for reaching the conclusion that “Pat’s death was preventable”. The opinions were simply too vague. Moreover, Mr McKenna could not confess or admit to matters of which he had no personal knowledge.[1]

[1] Anglim & Cooke v Thomas [1974] VR 363, 371 per Harris J.

36As to paragraph 47, it was suggested that, properly analysed, that statement was not capable of amounting to an admission at all. Mr McKenna was not asserting, as the prosecution contended, that all stags are dangerous; rather, he was asserting that all dangerous animals are processed at the first opportunity, including stags. The equivocal or ambiguous nature of the statement renders it incapable of constituting an admission against Midfield Meat.

37Dr Neal sought to reinforce that submission by reference to Champion J’s judgment in Mayhoub.[2]

[2] DPP v Mayhoub [2020] VSC 644, [32]–[38].

38In the alternative, it was submitted that if any of the representations was capable of amounting to an admission, the probative value in the circumstances was outweighed by the danger of unfair prejudice and they should be excluded pursuant to s 137 of the Act.

Prosecution submissions

39On behalf of the prosecution, Ms Titensor indicated that she intends to tender the witness statement containing the admissions along with other parts of the statement that explain and provide context, in much the same way as might be done with an accused’s record of interview.

40Ms Tittensor submitted that, taken in context, Mr McKenna acknowledged that the risk of serious injury or death to Mr Smith in undertaking his work for Midfield Meat would have been eliminated or reduced had he been working with another person, and that the animal that was likely responsible for Mr Smith’s death should have been separated from the herd because it was known to be a dangerous animal. He implicitly accepted, she submitted, that those measures were reasonably practicable and that there had been a failure to implement them.

41At paragraph 46, Mr McKenna admits that the animal was known to be dangerous and should not have been present in the yards on the morning. The reference to Mr Oliver and Mr Smith knowing that “it was a stag and not a steer” should be seen in the context of Mr McKenna’s earlier description of the traits that make a stag more dangerous at paragraphs 34–37.

42Finally, it was submitted that paragraph 47 was a clear admission that the company’s practice with stags was to deal with them at the first opportunity because of the risks associated with those animals.

Analysis

43The starting point in assessing these submissions appears to be s 88 of the Act:

88 Proof of admissions

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

44An admission is defined in the dictionary as:

… a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding

45Ordinarily, it will be for the jury to determine whether an accused made the admissions, but it will be for a trial judge to first determine that is reasonably open to make that finding. Ms Tittensor bears the burden of persuasion as to that anterior question.

46The facts in issue in this case generally concern whether or not the accused failed to provide and maintain systems of work that, in so far as was reasonably practicable, prevented its employees working with dangerous cattle in enclosed yards and working in enclosed yards alone.

47There is no issue that Mr McKenna is very experienced in handling cattle – it has been his life’s work. He therefore has the requisite specialised knowledge which would permit him to give opinion evidence on that subject.

48On their face, Mr McKenna’s representations bear directly on the facts in issue and are probative of the Crown case. That is so because, whilst the jury would be directed that they cannot reason with hindsight and that Mr Smith’s death is illustrative only of the alleged failures of the accused, Mr McKenna’s opinions bear directly on whether the accused failed to provide and maintain the systems alleged, as at 15 December 2017. In his position, with his knowledge, he is apparently well placed to comment on whether Mr Smith’s death was preventable. Although that would render it reasonably open to find that the representations were admissions, two further arguments stand in the way.

49The first is anchored in the proposition that Mr McKenna had no personal knowledge of what happened to Mr Smith, and the principle that an a accused cannot confess or admit to matters which he has not seen and of which he can only have knowledge by hearsay.[3] As Harris J explained in Anglim, such an admission will not be inadmissible but, depending on the circumstances, may carry no weight.

[3] Surujpaul v R [1958] 1 WLR 1050,1056 cited in Anglim & Cooke v Thomas [1974] VR 363, 371 per Harris J.

50In my view, the principle to be taken from Anglim is that although an admission may rely on hearsay, it may carry weight if it can be demonstrated that the person making the admission has sufficient familiarity with the subject matter of the admission. So, for example, in Bird v Adams,[4] an accused charged with possession of LSD admitted that he possessed the drug but did so reliant upon some markings on the drugs. There was evidence that he had trafficked in that drug which showed he had a degree of familiarity with the drug and was therefore in a position to make an admission about the nature of the drug he possessed that carried some weight.

[4] [1972] Crim. L. R. 174.

51In the same manner, Mr McKenna’s position and experience enables him to make admissions which carry some weight. It is no bar to admissibility that the opinion/admission is formed on the basis of hearsay information – that will be a matter of weight.

52However, his opinion can only be of value if the facts on which it is based are true. In that respect, I am satisfied that the factual basis and reasoning process for Mr McKenna’s opinions are sufficiently exposed in his statement. The second sentence of paragraph 45, for example – “I believe that Pat should have been working with another person on the day” – informs his assertion in the first sentence that “Pat’s death was preventable”.

53Likewise, paragraph 46 may be taken as asserting that Mr McKenna believed that both Mr Smith and Mr Oliver knew the animal was dangerous because it was a stag and that Midfield Meat’s system in place at the time required that it not be there.

54I should say, however, that I am not satisfied that the last sentence of paragraph 45 carries any weight. It is an explanation, clearly based on second-hand information, as to why Mr Oliver was not present at the time of the incident. It does not inform his opinion or otherwise constitute a representation against the interests of Midfield Meat and I would exclude that sentence.

55The second argument that stands in the way of admissibility relates to some ambiguity as to what Mr McKenna intended to convey in paragraph 47. It might mean that all stags are disposed of in that way or it might mean that stags assessed as dangerous are disposed of in that way.

56Clearly, it may not be possible to attach any weight to a statement which is so ambiguous or equivocal that its proper meaning cannot be rationally discerned. To borrow from the language of post-offence conduct, it will be “intractably neutral”. I do not regard this representation as meriting that description. It seems to me that the jury will be well placed to assess the meaning that Mr McKenna intended to convey for themselves by reference to all of the evidence. Clearly, if they remain unsure, they will not attach any weight to the representation.

57In my view, it is reasonably open to find that the representations the subject of this application, save for the last sentence of paragraph 45, are admissions and accordingly I find that they are admissible.

Section 137

58Ms Tittensor has indicated that she will call Mr McKenna as a witness in the prosecution case and that parts of his statement will be tendered.[5] There will therefore be plenty of opportunity for the defence to expose any shortcomings in Mr McKenna’s opinions and for Mr McKenna to explain or qualify the representations in his statement relied on by the prosecution.

[5] See Commonwealth of Australia v Helicopter Resources [2020] HCA 16.

59For the reasons I explained above, these admissions bear directly on the facts in issue in this case. I assess their probative value as high. Such danger of unfair prejudice as might exist seems to me to be ameliorated by the fact that there will be an opportunity to explain and qualify what was said afforded to Mr McKenna. Further, the danger of any residual prejudice can, in my view, be managed through direction and guidance to ensure the jury carefully examine the foundation for any of the opinions Mr McKenna expresses.

Conclusion

60The representations are admissible as admissions, with the exception of the last sentence of paragraph 45.

Ruling No. 3 – Calling of witness David Bennie

61On this application the defence have requested that the prosecution call Mr David Bennie as a witness at trial. The prosecution have refused to do so. As I understand it, the defence have sought that I, as the trial judge, express the view that it would be desirable and in the interests of justice for the witness to be called by the prosecution.

62Alternatively, it was put that if the prosecution continue to refuse to call Mr Bennie as a witness, despite any encouragement that I might give them, then I should stay the proceedings because the unfairness created by that refusal would constitute a miscarriage of justice.

63Mr David Bennie made a statement to Dr Neal and Mr Russell's instructing solicitors on 21 January 2020. The statement expressly states that he has not made a statement to WorkSafe 'in relation to an incident which occurred on 15 December 2017 resulting in the death of Patrick Smith.' Mr Bennie is a farmer and runs a cattle transport business. He often sells cattle to Midfield Meat. Importantly for the purposes of this argument, Mr Bennie dealt with the stag that was said to be responsible for Patrick Smith's death.

64In his statement, Mr Bennie describes that dealing in the following way:

'In November 2016, we purchased around 140 cattle at about 140 kilograms each from Western Australia and we grew them out until June 2017. At this point, I approached Midfield to sell some cattle which weighed an average of 230 kilograms when we sold them. Patrick Smith and I inspected all the cattle before deciding which ones would be sent to Midfield. Patrick inspected the animals by getting into the drafting yards and carefully looking at the animals.'

'He made the decision for Midfield to buy 33 of the straight-breed Friesian steers. No stags were identified in the group of 33. The animals were purchased as steers and there was nothing in the paperwork which identified any of the animals as a stag. I do not remember seeing any animals which clearly remained a stag. It is possible for animals to have a testicle stuck in their stomach and it will lower later, so it is not always obvious they are a stag. After he purchased the animals from me, he took them back to his place and paid me per weight after weighing them at his farm.'

'It would not take long to weight cattle, as he just needs to move them through the crush. I think to weight 35 heads of cattle, it would take maybe an hour to an hour and a half.'

65Beyond that evidence, Mr Bennie can also attest to his knowledge of Patrick Smith's cattle handling skills, his experience in the management of cattle and Mr Smith's ability to identify dangerous animals. Mr Bennie also provides his own understanding as to the practise of identifying dangerous animals for collection by Midfield Meat and what he recalls of what he calls the two person rule.

66Dr Neal contends that the prosecutor has a duty to ensure that the Crown case is presented from all perspectives, based on the overriding consideration of the interests of justice. The discharge of that duty requires all witnesses who can give material and credible evidence to be called at trial, including those witnesses who might be unfavourable to the prosecution case. The fact that Mr Bennie might be seen as being in the defence camp should be no impediment to his being called by the Crown. Dr Neal submitted that Mr Bennie's evidence was material, the records proving that the stag in question in this case was handled by Mr Bennie having more recently been provided to the prosecution.

67In addition, no issue, it was said, could reasonably arise as to the witness's credibility which might otherwise provide a basis for refusing to call him.

68Ms Tittensor submitted that the relevant fact in issue at trial will be what the accused, Midfield Meat, should have known or did know about the animal as a consequence of what was known by Patrick Smith. That evidence will largely come from Craig Oliver. Mr Oliver made a statement on 8 February 2018, which in part states the following:

'Occasionally he [referring to Mr Smith] would work the stock on his own depending on exactly what had to be done and if I was available or not. There was no formal agreement in relation to me helping with stock handling between Midfield and Windover.

Pat rang me earlier this week, around Tuesday, 12 December 2017 to ask me if I could get the cattle in the yards for him, as he was coming to weight them. He knew we were shearing at this time, so his intention was to come and do the whole lot himself. I got the cattle in on the morning of Friday, 15 December 2017 at around 7.30 am. They were yarded as separate mobs of around 50 for ease of management. I left the cattle in the yards and went back to my place to continue sheering. My wife Jane was mainly dealing with the shed.

Amongst the herd of cattle, there was one bull who was agitated. He would have been the dominant animal in the herd and displayed behaviour like bellowing and marching up and down. From my experience with cattle, I took note of this animal as potentially dangerous and wanted to be cautious of when handling, particularly in the yards. I know Pat also knew about this animal, as we had noticed him on previous occasions when handling these cattle. We both agreed that he had not been castrated properly and retained a testicle.

The animal's behaviour was cause for caution but not outside the normal range of expected behaviour in these circumstances. That is not a particular issue, as many times we have had all bull cattle here on agistment, and on numerous occasions have had mixed herds of steers and bulls, up to 600 a year without incident. I can't specifically recall if there has ever been an occasion with only one bull and the rest steers, but it is quite possible. I've seen Pat work with cattle in the yards on many occasions and would describe him as a very experienced stockman with cattle. I've never seen Pat take any unnecessary risks when working with stock.

He had a quiet manner of working with the cattle. Pat was quite used to working on his own. Pat would have noticed the behaviour of that animal as soon as he got there and marked it as dominant, the same as I had. He would not separate the animal from the others, as this would only serve to make it more agitated. If I was in the yards with this animal, I would keep a close eye on it and make sure it was enclosed in the mob as much as possible by other animals. I would certainly avoid isolating this animal or being too close to it.'

69And then, further on, at paragraph 22 of his statement, Mr Oliver states:

'We did not discuss the behaviours of this animal during this conversation. If it had been anyone other than Pat, as in, someone less experienced with cattle, I may have warned them to be careful about this animal, but I had no such concern with Pat due to my knowledge of his experience.'

70Mr Oliver's proposed evidence will provide a contemporaneous account of the behaviour of the animal at the relevant time, and both his and Patrick Smith's knowledge of that animal and its behaviour at that time. In addition, the animal itself was tagged with the word 'BULL' and had bull-like traits in both its physical appearance and its temperament. It followed, it was submitted by Ms Tittensor, that an account of the animal six months earlier in June 2017 to the effect that such behaviour or characteristics were not evident at that time was not capable of rationally affecting the fact in issue.

71The balance of Mr Bennie’s statement, it was said, gave rise to matters which were opinion and were not material.

Analysis

72As to the legal principles to be applied, the first relevant principle is that a trial judge may question a prosecutor as to the reasons for not calling a witness, and, if appropriate, encourage the prosecutor to reconsider their decision. That seems clear enough having regard to what was said by the High Court in The Queen v Apostilides (1984) 154 CLR 563 (‘Apostilides’) and by the Victorian Court of Appeal in the decision of R v Jenson (2009) 23 VR 591 (‘Jenson’), at paragraph 61 in particular.

73As to the general principles to be applied, they are, I think, best summarised in the judgments of Dean J and then of Dawson J in the decision of Whitehorn v The Queen (1983) 152 CLR 657 (‘Whitehorn’). In that case, Deane J said at page 664:

‘The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.'

74Then from Dawson J at page 674, where his Honour said:

‘Nevertheless, there is good guidance in the cases for what constitutes a material witness. 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 prosecution is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made.'

75I should add that in balancing the interests of justice I need to be conscious that there will often be a forensic disadvantage to the defence if they find themselves in a position of having to call a material witness and are thereby shutout from testing that evidence in cross-examination.

76Now, applying those principles to the proposed evidence of Mr Bennie, it seems to me that his evidence as to the purchase of the stag and its non-identification as a problematic animal by him or Mr Smith six months before the time in question is, to use Deane J's words, not ‘necessary for the presentation of the whole picture’ that comprises the prosecution case.

77In my view, a fair determination of the facts in issue in this case does not require evidence as to the history of the purchase of the animal, its journey to Victoria or non-observations of its characteristics six months before this incident. Indeed, Mr Bennie himself provides one hypothesis as to why the animal's behaviour may have differed in June as compared to December 2017. He states in his statement at paragraph 7, to which I have already referred:

'I do not remember seeing any animals which clearly remained a stag. It is possible for animals to have a testicle stuck in their stomach and it will lower later, so it is not always obvious they are a stag'.

78I acknowledge that s 55 of the Act creates a low threshold as to relevance, but in the circumstances of this trial it is difficult to see how the evidence could rationally affect the probability of the existence of the fact in issue. Be that as it may, I am content to find that this aspect of Mr Bennie's evidence is not material to the facts in issue which must be determined by this jury.

79As to the balance of Mr Bennie's statement, it seems to me that it is not sufficient to simply dismiss that evidence as opinion evidence. It may be, without deciding the matter, that Mr Bennie's knowledge of Mr Smith's cattle handling skills, his ability to identify dangerous animals, and how Midfield Meat deals with dangerous animals are matters that are potentially relevant and admissible at trial. I note, however, that there is a wealth of that kind of evidence to be called by the prosecution from other sources. I do not see Mr Bennie's evidence in that respect as at all necessary to the unfolding of the prosecution narrative.

80Accordingly, I am not satisfied that the principle described in Whitehorn and restated in Apostilides and in Jensen has been engaged. In those circumstances, I decline the application to encourage the prosecutor to reconsider her decision to refuse to call Mr Bennie. It further follows that no basis arises on which it would be possible to order a stay of proceedings, and that is so because I could not be satisfied that any unfairness flows to the defence from the decision by the prosecutor not to call Mr Bennie.

81Finally, I note that it remains well open to the defence to call Mr Bennie. It seems to me that some of his proposed evidence is capable of assisting the accused in a manner not dissimilar to the way in which good character evidence might assist an accused. There is, as I perceive it, no forensic disadvantage accruing to the defence by calling evidence of that kind, even though it cannot be the subject of cross-examination. If Mr Bennie is called by the defence to give evidence, and there is any objection to the relevance of his evidence or his capacity to give opinion evidence, then I will deal with such objections in the running.