Donegan v Jordan
[2014] ACTSC 274
•24 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Donegan v Jordan |
Citation: | [2014] ACTSC 274 |
Hearing Date: | 11 November 2013 |
DecisionDate: | 24 October 2014 |
Before: | Penfold ACJ |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal against conviction – appellant prosecuted for failing to provide sample of breath for breath analysis – evidence led by prosecution did not include full description of device used to conduct preliminary alcohol screening test – proper conduct of alcohol screening test an element of the offence – no case submission – whether Magistrate erred in allowing prosecution to re-open case to lead further evidence identifying device – no error by Magistrate – appeal dismissed. CRIMINAL LAW – EVIDENCE – Miscellaneous Matters – whether, before defence goes into evidence, prosecution may be permitted to re-open case to lead evidence of formal matters omitted from case by inadvertence. |
Legislation Cited: | Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 7, 8(1)(a)(i), 11,12(1), 22, 22(b), 22(d) Road Transport (Alcohol and Drugs) Regulation 2000 (ACT), reg 2 Criminal Code (Queensland), s 29(2) |
Cases Cited: | CDR (R) (1995) 78 A Crim R 572 Doney v The Queen (1990) 171 CLR 207 Wasow (1985)18 A Crim R 348 |
Texts Cited: | Cross on Evidence, (9th Aust ed, 2013), Heydon JD |
Parties: | Wayne Donegan (Appellant) Peter Jordan (Respondent) |
Representation: | Counsel Mr T Sharman (Appellant) Ms S Gul (Respondent) |
| Solicitors Sharman Lynch (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 57 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 29 July 2013 Case Title: Jordan v Donegan Court File Number: CC12/6418 |
Introduction
Wayne Donegan has appealed against a conviction for an offence contrary to s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act). The offence is committed if a person who has been the driver of a motor vehicle on a road or road related area is, in accordance with the Act, required to provide a sample of breath for breath analysis, and the person fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.
The conviction was recorded on 29 July 2013 in the Magistrates Court, and on 30 July 2013 a notice of appeal was filed. The original notice specified two grounds of appeal, but only one is pursued, being that:
His Honour erred in allowing the prosecution to reopen its case.
At the end of the appeal hearing, I gave leave for further written submissions to be filed, but none were filed before the specified deadline.
Background
On 29 July 2013, after the prosecution had closed its case, defence counsel made a no case submission. He argued that the evidence before the Magistrate was inadequate to establish one of the elements of the offence. Over defence objections, his Honour permitted the prosecutor to re-open the case and to call brief evidence to address the deficiency in the prosecution case. There was no cross-examination on the evidence.
The elements of the offence
Section 22 of the Act as in force at the date of the alleged offence is as follows:
22Refusing to provide breath sample
A person who—
(a)has been––
(i) the driver of a motor vehicle on a road or road related area; or
(ii) the driver trainer in a motor vehicle on a road or road related area; and
(b)has, in accordance with the provisions specified in this Act, been required to provide a sample of breath for breath analysis;
commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if—
(c)the person refuses to provide a sample of breath for analysis; or
(d)the person fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.
There was apparently no dispute that the evidence established that the defendant had been the driver of a motor vehicle on a road. The original defence appears to have related to the defendant’s conduct at the police station after he had been taken into custody for breath analysis, but the issue that emerged during the Magistrates Court hearing was whether he had been required, “in accordance with the provisions specified” in the Act, to provide a sample of his breath for breath analysis as specified in s 22(b) of the Act.
The process by which a police officer may under the Act require a person to provide a sample of breath for breath analysis is described below.
Section 8(1)(a)(i) of the Act empowers a police officer to require a person to undergo an alcohol screening test if the person is the driver of a motor vehicle on a road.
If a person undergoes an alcohol screening test in accordance with such a requirement, and
the alcohol screening device used for the test indicates that the concentration of alcohol in the person’s blood or breath is in the prescribed concentration
then s 11 of the Act authorises the police officer to take the person into custody and to take him or her as soon as practicable to a police station or other convenient place for the person to undergo breath analysis.
A person taken into custody under s 11 must, under s 12(1):
give, in accordance with the reasonable directions of a police officer ..., a sample of the person’s breath for breath analysis.
An “alcohol screening test” is defined in the Dictionary to the Act to mean a test of a sample of a person’s breath using an alcohol screening device. An “alcohol screening device” is defined in s 7 of the Act as follows:
7Meaning of alcohol screening device
In this Act:
alcohol screening device means a device prescribed by regulation that is designed to analyse a sample of a person’s breath to indicate if the person’s blood or breath contains the presence of alcohol.
NoteAn alcohol screening device is used to carry out an alcohol screening test.
Regulation 2 of the Road Transport (Alcohol and Drugs) Regulation 2000 (ACT) at the relevant time (7 July 2012) prescribed the following devices:
(a)Alcolizer LE;
(b)lion alcolmeter SD-400.
In summary, a person is only required by s 12(1) to give a sample of breath for breath analysis if he or she has been taken into custody under s 11, and a person may only be taken into custody under s 11 if he or she has undergone an alcohol screening test as defined. At the relevant time, the alcohol screening test could only be conducted on an Alcolizer LE or a lion alcolmeter SD-400.
The evidence
First Constable Jordan, who had administered the test said to be an alcohol screening test for the purposes of the Act, gave evidence before the Magistrate as follows:
And you requested that he undergo a screening test? – – – That’s correct.
And what device did you use? – – – We used a Lion Alcometer.
HIS HONOUR: Sorry, what was that bit?---It was a Lion Alcometer.
Right
MS CLARKE: And what was the result of that test?---It came back with a positive result for alcohol.
I note that the Magistrates Court transcript quoted refers to the device as an “alcometer” rather than an “alcolmeter” as specified in the regulation. I do not know whether this reflects a mis-transcription of the witness’s correct reference to the name of the device or the witness’s mispronunciation of the name of the device. Nothing has been made of this in the appeal.
The witness was cross-examined at length, but not about the screening device.
No case submission and application to recall witness
The no case submission was to the effect that:
(a)the description of the alcohol screening device that was used to administer the alcohol screening test as a Lion Alcometer did not identify an “alcohol screening device” prescribed in the regulations because there was no reference to SD 400, part of the description of the device set out in the regulation;
(b)therefore no basis for taking Mr Donegan into custody for breath analysis had been established;
(c)therefore there was no valid requirement to provide a sample of breath for breath analysis; and
(d)therefore any failure by Mr Donegan to provide a sample of his breath could not be shown to constitute an offence under s 22.
The prosecutor responded to the submission by saying that the claim was of a technical omission from the evidence but that, if the Magistrate regarded it as necessary for that evidence to be before him, she would seek leave to re-open the case and recall a witness to give the necessary evidence. In the course of her submission the prosecutor noted that there was a document containing full identification of the device that she had, however, refrained from tendering because it showed the defendant’s blood alcohol reading recorded by the device and that reading would have been prejudicial to the defendant. During examination in chief of Constable Nathan Smorhun, who had been working with Constable Jordan at the relevant time, defence counsel had in fact objected to questioning that he believed was aimed at eliciting the result of the roadside screening of the defendant.
After a 50-minute lunch adjournment, defence counsel indicated that he had not in the time available been able to find any relevant authorities about how the prosecutor’s application should be dealt with, and the Magistrate, without calling on the prosecutor, indicated that he would permit the prosecutor to re-open her case to the extent necessary to call evidence to “completely and formally identify the roadside screening device that was used”. His Honour gave brief reasons for that determination, recorded in the transcript as follows:
It is apparent to me that the matter is a mere formality in the circumstances despite the observation that the absence of it is something that goes to one of the elements of the offence, the same point could be made about usually every piece of evidence which is a formality. This is not a case where it is the prosecution seeking to call evidence to rebut something in the defence case.
There is, as I’ve said, authority to the relevant effect and I rely in particular upon the Queensland Court of Appeal decision which is R v CDR although I think it is reported in the Australian Criminal Reports simply a[s] R, and the citation for that is (1995) 78 ACR 572.
It refers in turn to an English Court of Appeal decision in Francis (1990) 91 Criminal Appeal Reports 271. I think it’s fair to say on my reading of the authorities that the English Court of Appeal decision in Francis suggests that the discretion is somewhat broader than that referred to by the Queensland Court of Appeal, but in any event the Queensland Court of Appeal decision is sufficient for me to conclude that the discretion should be properly exercised in cases where the matter to be proved is a formality, and it seems to me that the issue of the discretion is also covered by the judgment of Street CJ with whom Hope and Enderby JJ agreed in the decision in Wasow 18 ACR at 348. So they’re the decisions to which I have had reference in order to reach the conclusion that I’ve reached in relation to this.
Re-opening of prosecution case
Constable Jordan was accordingly recalled and gave evidence that the instrument used for roadside screening of the defendant was (as transcribed) the “Lion Alcometer SD400”.
Arguments on appeal
The appeal turns on a very narrow point, specifically, whether his Honour was in error in permitting the prosecution to re-open its case to correct the technical deficiency in its evidence.
Appellant’s arguments
The appellant relies on comments made by Pullin JA in the case of Manyam v The State of Western Australia [2010] WASCA 107 (Manyam), decided by the Court of Appeal of Western Australia. That case involved a ground of appeal arising out of the trial judge’s giving of leave to the prosecution to lead rebuttal evidence. The facts of the case were, relevantly, that the appellant’s DNA had been found on cable ties used in an aggravated armed robbery. One of the robbers had pleaded guilty. In the defence case, the appellant admitted to knowing that robber, and gave evidence that he had used cable ties of the relevant kind in connection with his employment by that robber, specifically in connection with the use of a vacuum cleaner said to have two nozzles that needed to be held close together. The Crown sought and was granted permission to call evidence in rebuttal of the claim that there had been a need to use cable ties in connection with the use of the vacuum cleaner.
In Manyam, the dispute turned on whether the need for the rebuttal evidence could have been foreseen by the prosecution and whether the trial judge’s decision amounted to allowing the prosecution to split its case, constituting an error of law and giving rise to a miscarriage of justice. The Court of Appeal, in three separate judgments, decided that the appeal should be dismissed on the ground that no substantial miscarriage of justice had occurred.
Pullin JA at [31] and Jenkins J at [210] found that the trial judge did not err in allowing the evidence to be called in rebuttal. Buss JA at [120] held that the trial judge should not have allowed the rebuttal evidence to be given.
Pullin JA summarised the law relating to the admission of rebuttal evidence as follows:
19 Any evidence called after the defence case may be called rebuttal evidence: Soma [34]. The principles governing the calling of rebuttal evidence are as follows:
(a) There is a wide discretion in the trial judge to permit the calling of rebuttal evidence: Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365, 383; Lawrence v The Queen (1981) 38 ALR 1, 22 - 23; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 568 - 571, 575 - 576; R v Chin [1985] HCA 35; (1985) 157 CLR 671, 677.
(b) However, in the exercise of that discretion, the trial judge must bear in mind the rule that the prosecution must have offered 'all its proof' of 'its case' (the case is the 'prosecution case-in-chief' (Soma [60])) before an accused is called upon to make his or her defence: Soma [27] - [28], [58] and Shaw (380).
(c) The rule is a rule of practice and procedure, not of substantive law: Soma [28]. The rule is a reflection of the underlying principle of fairness which must be observed in the accusatorial and adversarial procedures involved in a criminal trial: Killick (569); Soma [27].
(d) The rule does not just apply to prevent a deliberate attempt by the prosecution to split its case, but also to prevent the prosecution from calling evidence in proof of the guilt of the accused which ought reasonably to have been foreseen as necessary to support the prosecution case: Chin (676); Killick (570 - 571, 576 - 577); Shaw (379); Soma [104].
(e) the prosecutor cannot however 'credit the accused with fancy defences in order to rebut them at the outset with some damming piece of prejudice': Thompson v The King [1918] AC 221, 232, cited in Killick (571). Likewise, it cannot, for example, give evidence in disproof of a non-issue, for example, to disprove an alibi which the accused has no intention of raising: Killick (571). However, if there is any uncertainty about the existence of an issue or the likelihood that an issue will be created in the defence case, the prosecutor should make enquiry of the accused's counsel about whether there is an issue or will be such an issue. In Killick, the plurality gave an example about the possibility of alibi evidence being led. They said:
[T]here will be no difficulty in asking counsel for the accused whether or not it is intended to set up the alibi at the trial. Counsel ... is not bound to give the information sought, but if he declines to give the information, or says that there is no intention to set up the alibi, and evidence in support of the alibi is then given at the trial, the circumstances will be such as to justify the presiding judge in allowing the Crown to give the evidence in rebuttal. On the other hand, if counsel for the accused states that it is intended to set up the alibi, the Crown can then give in chief the evidence to disprove it. If the Crown is aware of the details of the alibi, and knows that it is intended to rely on it at the trial, there is no more justification for withholding until the close of the defence case evidence to refute the alibi, than there would be for withholding evidence to refute a claim that the accused acted in self-defence (571 - 572).
(f) It has been said that the circumstances in which the discretion may be exercised by a trial judge to permit evidence to be led in rebuttal are likely to be exceptional: Chin (676); Shaw (380, 383); Soma [59]. There can be departures from the general rule and there is no rigid formula which can define the exceptional cases where this will be permitted because of the infinite variety of difficulties that may arise in a criminal trial: Soma [28].
It is important to bear in mind that the 'rule' referred to in (b) is a rule preventing the splitting of the prosecution case. If the evidence to be led in rebuttal is not in proof of the prosecution case, then, save for the identification of issues which might arise as illustrated in (e) above, there is no reason for the rule to apply. The test to be applied in determining whether the prosecution is splitting its case is to ask whether there was any issue on which the prosecution would have been able to lead the rebuttal evidence in its case in chief. This is because evidence is not admissible unless it is relevant. If it is not relevant, it must be excluded: Hollington v Hewthorn & Co Ltd [1943] 1 KB 587; see also my reasons in Stubley v The State of Western Australia [2010] WASCA 36 [82] - [107] - a point not addressed by the majority in that case. McHugh J in Soma makes it clear that the 'rule' does not prevent the calling of evidence of an accused person's inconsistent statement 'as long as the statement was not admissible in proof of the prosecution case' [76]. Thus if an application is made to lead rebuttal evidence, the parties and the court should focus their attention on whether there was a live issue during the presentation of the prosecution case which would have made the rebuttal evidence admissible. If the answer is that it would not have been admissible because it was not relevant to any issue in the prosecution case, but an issue is unexpectedly raised by the accused in the conduct of his case, then it is likely that the discretion will be exercised in favour of leading the rebuttal evidence.
20 The facts in Shaw, Niven and Soma all involved circumstances where the prosecution sought to lead rebuttal evidence in the form of proof of a prior statement inconsistent with the testimony of the accused given at trial. What is illustrated in each of those cases is that the evidence was in fact in proof of the prosecution case. It could and should have been led in the prosecution case in conventional fashion, that is by calling witnesses to give evidence of statements the accused made after the commission of the offence which contained incriminating evidence in proof of the charges. In other words, as McHugh J explained in Soma [60], the statement was admissible as an admission in the prosecution's case-in-chief.
21 The facts in Chin provide another example of evidence led in rebuttal which was in truth part of the prosecution proof of its case. The prosecution case was that the two co-accused were associated in a drug importation transaction. It was reasonably foreseeable that they would deny the association with each other, and the prosecution should then have anticipated this by leading evidence that both had signed visa application forms showing the same business telephone number. This was not done. The prosecutor was wrongly permitted to lead evidence in rebuttal to establish that both accused referred in their application forms to the same number (677).
22 Those cases emphasise that the main purpose of the rule is to prohibit evidence being led which is evidence 'in proof' of the prosecution case. I should add that the prosecutor may not split his case in order to disprove what is incorrectly called a defence. For example, in the case of assault, the prosecution must negative that the accused acted in self-defence as soon as there is some evidential basis for that defence. The prosecutor may not wait until the accused gives evidence that he acted in self-defence, and then seek to lead evidence in rebuttal. Likewise, provocation must be negatived if the circumstances suggest that the accused was provoked: see R v Johnson [1961] 1 WLR 1478 and R v Taylor [1968] NZLR 981, 985 - 986, cited in Killick (570).
23 Examples of circumstances in which evidence in rebuttal is permitted are given by McHugh J in Soma [64]. They include evidence to rebut evidence of insanity (the onus being on the accused), evidence to rebut character evidence and evidence to rebut unexpected alibi evidence: see also Shaw (379 - 380).
I note first that the description of “rebuttal evidence” at [19] of Pullin JA’s judgment, to which the rest of the extract refers, is “evidence called after the defence case”. In R v Soma (2003) 212 CLR 299, relied on by Pullin JA for that definition, Gleeson CJ, Gummow, Kirby and Hayne JJ said at [34]:
In [Niven v The Queen (1968) 118 CLR 513], the Court held [at 516] that the expression “evidence in rebuttal” should be understood as applying to all evidence sought to be adduced by the prosecution after the accused’s defence was complete.
The evidence concerned in this case was adduced by the prosecution after it had formally closed its case, and after the no case submission had been made, but before any defence evidence was given. Indeed, the defence did not in fact call any evidence. On this basis alone, Manyam would seem to be distinguishable to the extent that it is inconsistent with other lines of authority about the re-opening of the prosecution case to fill a gap inadvertently left when the case is formally closed.
Counsel for the appellant also referred to O’Meara v The State of Western Australia [2013] WASCA 228 (O’Meara), in which Buss JA commented on “the rule against the State splitting its case”, saying:
21 The notion of the State splitting its case embraces the State calling evidence in rebuttal and the State reopening its case. In Heydon JD, Cross on Evidence, (9th Aust ed, 2013), the author states:
If evidence is legitimately capable of being called in rebuttal, either as of right or because the circumstances are such that the court can and should properly exercise its discretion to do so, the party calling the evidence is not reopening its own case, but answering its opponent's. In these circumstances there is a distinction of principle between a party calling [rebuttal evidence and a party] reopening that party's case in the sense that the party seeking to call the evidence is attempting to avoid the consequences of a mistake in failing to call it earlier, and asks the court in its discretion to permit it to call additional evidence [17620].
22 The author also notes that the principles appear to apply indifferently to evidence rebutting other evidence and to new evidence in the sense of a case being reopened [17620].
23 The legal principles at common law concerning the State splitting its case at a criminal trial have been enunciated and explained by the High Court in numerous decisions. See, for example, Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365; Lawrence v The Queen (1981) 38 ALR 1; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; R v Chin [1985] HCA 35; (1985) 157 CLR 671 and R v Soma [2003] HCA 13; (2003) 212 CLR 299.
24 The general rule is that the State should not be permitted to split its case, except in very special or exceptional circumstances. That is, in general, the State must present the whole of its case before the accused is called upon to present his or her case by giving sworn evidence in his or her own defence or calling other witnesses. The trial judge has a discretion to permit the State to reopen its case or call evidence in rebuttal but, in general, it should not be exercised if the necessity for adducing the evidence in question as part of the State's case could reasonably have been foreseen.
25 In Killick, Gibbs CJ, Murphy and Aickin JJ referred to the general rule and described it as not merely a technical rule, but an important rule of fairness (569). Their Honours continued:
Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution (569).
26 In Chin, Gibbs CJ and Wilson J referred to Shaw, Killick and Lawrence, and then stated and discussed the general principle and the trial judge's discretion to permit departure from it:
The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: R v Levy and Tait ((1966) 50 Cr App R 198 at p 202)) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief (676 - 677).
27 The general rule and the closely circumscribed circumstances in which the trial judge may permit departure from it are based on two fundamental propositions. First, the burden is upon the State to prove the accused's guilt beyond reasonable doubt. Secondly, the accused is entitled to a fair trial including the protection of his or her right to silence and the presumption of innocence.
28 As Dawson J (Mason J agreeing) observed in Chin:
The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for defence (685 - 686).
See also Killick (569).
Counsel also referred to the summary provided by Mazza J in O’Meara at [140]:
140 The general rule is that the prosecution must present the whole of its case before the accused is called upon to present a defence. The prosecution is not permitted to split its case or adduce rebuttal evidence other than in special or exceptional circumstances. The trial judge has a discretion to permit the prosecution to reopen its case and adduce rebuttal evidence. However, in general this discretion should not be exercised to permit the prosecution to adduce evidence that could have been led in its case. Nor should it be exercised to permit the prosecution to call further evidence in proof of guilt where that evidence ought reasonably have been foreseen as necessary to support the prosecution case.
Counsel submitted that the authorities referred to in his submissions:
support the proposition that the Crown should not be able to reopen to avoid the consequence of a deficiency in its case. In the absence of clear authority from the High Court, the decision in R v CPR [sic] can be distinguished, particularly on the facts. In CPR [sic] the application to reopen followed a no case submission – one in which the evidence subsequently adduced went to a rebuttable statutory presumption and in circumstances where the no case submission was one that seems to have been properly rejected.
In fact the authorities referred to by counsel for the appellant relate to “rebuttal evidence” as explained by Pullin JA in Manyam, that is, evidence called after the defence case. Defence counsel’s reliance on Buss JA’s reference, in the material quoted at [28] above, to the distinction drawn in Heydon JD, Cross on Evidence, (9th Aust ed, 2013) is not to the point. The distinction is drawn between:
a party calling [rebuttal evidence and a party] reopening that party's case in the sense that the party seeking to call the evidence is attempting to avoid the consequences of a mistake in failing to call it earlier, and asks the court in its discretion to permit it to call additional evidence.
Buss JA does not, however, rely on this distinction for any relevant conclusion, but goes on to explain (as is done in each of the extracts quoted by defence counsel) that the general prohibition on the Crown splitting its case requires that:
in general, the prosecution must present the whole of its case before the accused is called upon to present his or her case by giving sworn evidence in his or her own defence or calling other witnesses.
That is not the present case. There was no suggestion in the present case that the prosecution would present any evidence after the defence case.
In oral submissions in reply, counsel for the appellant referred me also to the cases of Doney v The Queen (1990) 171 CLR 207 (Doney) and R v White (No. 6) [2012] NSWSC 470. He relied on the comment by Deane, Dawson, Toohey, Gaudron and McHugh JJ In Doney at [11] that:
there is no doubt that it is a trial judge’s duty to direct [a verdict of not guilty] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.
In R v White, R A Hulme J said at [2]:
I have a duty to direct an acquittal if, at the conclusion of the prosecution case, the evidence is incapable of proving an alleged offence. I have no power to direct a verdict merely because I have formed a view that a guilty verdict would be unreasonable, or in the terminology formerly used, unsafe and unsatisfactory.
Neither of these comments, in my view, can be accepted as overturning the authorities already quoted about the circumstances in which the prosecution may be permitted to lead further evidence after it has formally closed its case.
I note at this point the comment by counsel for the appellant that cases in support of the proposition that the Crown may be permitted to re-open a case seem to relate to prosecutions in Magistrates Courts, and that he was unable to find equivalent cases relating to trials on indictment. Some of the authorities about splitting the Crown case refer to the undesirability of the Crown, in effect, having the last word in presenting evidence to a jury (see, for instance, Killick v The Queen (1981) 147 CLR 565 at 569, quoted at [28] above), a consideration that clearly does not apply before a Magistrate. It is possible (although it seems to me unlikely) that other considerations are significantly different in trials on indictment, but since this appeal relates to a prosecution before a magistrate, any such distinction seems to be irrelevant for present purposes.
Respondent’s arguments
The respondent relies, as did the Magistrate, on the decision in CDR, reported as R (1995) 78 A Crim R 572. In that case, the Queensland Court of Appeal upheld the approach of the trial judge in giving the Crown permission to re-open its case. The case involved the trial of an accused person who was not quite 15 years of age at the time of the alleged offence, and the Crown was permitted to re-open to address s 29(2) of the Criminal Code (Queensland), which concerned age and criminal responsibility. As in the present case, that permission was given following the making of a no case submission and before the defence went into evidence.
In that case, the Court referred at 574 to earlier English authority, as follows:
An application by the Crown to re-open can more readily be accepted where (as here) the purpose is not to rebut evidence called on behalf of the defence, but to fill a gap in the Crown evidence which has been noticed. In McKenna (1956) 40 Cr App R 65, a “highly technical” point was taken by way of submission of no case and the Crown was allowed to re-open, the Court holding that in these circumstances there was a complete discretion whether a witness could be recalled. More recently in Central Criminal Court; Ex parte Garnier (1988) RTR 42, and Francis (1990) 91 Cr App R 271, it has been held that there are two exceptions to the rule that the prosecution must call the whole of its evidence before closing its case; the first is that evidence may be called to deal with a matter which could not have been foreseen before the defence raised it; the second is that formal matters may be proved. But according to English practice, the discretion to admit evidence after close of the prosecution case is not confined to those two exceptions: “it is of the essence of any discretion that it should be kept flexible” (Francis at 275). It appears to us that the law as laid down in these two cases is likely to provide a sound guide to the exercise of the discretion, as long as it is kept in mind that allowing a re-opening is an exceptional course.
The respondent also referred to several single judge decisions which supported the approach taken by the Magistrate in this case.
These included Henning v Lynch [1974] 2 NSWLR 254, a case also involving an allegedly inadequate description of a breath testing device, in which Jeffrey J said at 258:
But even if it had been a necessary part of his case for the informant to prove that the device used in the course of conducting the procedure which in evidence he described as an “alcotest” was one bearing thereon that word, the learned magistrate should, in his discretion, have allowed him to reopen his case in order to do so and the exercise of his discretion against that course was sufficiently unwarranted to have caused him to commit an error in law. Justices have a discretion, after the case for the prosecution has closed, to permit the prosecutor to reopen his case for the purpose of supplying technical defect in the evidence for the prosecution. Here it was plain that any omission actually to say that the device bore on it the vital word was an inadvertence, and it was equally plain from the evidence which Constable Henning actually gave about the defendant undergoing an alcotest what his evidence about the nature of the device would be. There is a distinction between such failure to tender evidence and an election not to tender it; and it is no doubt important to respect the principle that the prosecution should stand or fall by the evidence it chooses to lead and should not be allowed to support its case by calling fresh evidence to meet the case for the defendant which contradicts it. But that principle has no application here. The applicable principle is one which in the circumstances obtaining here strongly favour the reopening of the prosecution case. Where the defendant’s case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed it is – to use the words of Cave J in Hargreaves v Hilliam “a very fit and proper thing to allow the evidence to be given unless there is some very good reason.” And in Duffin v Markham the Divisional Court spoke disapprovingly of justices who “availed themselves of a mere oversight on the part of the prosecution to dismiss the information is”. The spirit of these utterances has been echoed in this State: Kench v Bailey. [citations omitted]
Jeffrey J’s words appear to have been strictly obiter dicta, in that his Honour determined the appeal on the basis that the evidence before the magistrate was in fact adequate to establish the elements of the offence, and that the magistrate had erred in dismissing the information on the basis that no prima facie case had been made.
Counsel also mentioned Hiscox v Guildersleeve [2011] WASC 229 (Hiscox), in which Murray J (referring among other cases to Henning v Lynch) dismissed an appeal from a magistrate who had adjourned a hearing, to enable the prosecutor to produce more evidence, after accepting that a no case submission could be made out in the prosecution of the defendant. The no case submission was that the alleged breach of a restraining order could not be made out because no evidence had been provided that the restraining order had been in force at the time of the alleged breach. After the magistrate had agreed to adjourn the proceedings, the defence made a formal admission that the restraining order had been in force. Murray J said that in his view the magistrate had been correct in concluding that allowing the prosecutor’s adjournment application would not involve any splitting of the prosecution case.
Finally I note that the Western Australian cases relied on by counsel for the appellant include references to R v Chin (1985) 157 CLR 671. That case, like most of the other cases cited on behalf of the appellant, related to the Crown’s splitting of its case by the introduction, after the close of the defence case, of evidence previously available to the Crown; in that case the evidence was said to establish a connection between the respondent and a co-accused. However, the in the course of their joint judgment, Gibbs CJ and Wilson J said at 676‑677:
The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen, Killick v. The Queen and Lawrence v. The Queen. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief. [Emphasis added, citations omitted].
See also Wasow (1985) 18 A Crim R 348 at 349-350.
The interests of justice
In Hiscox, Murray J concluded his consideration by saying:
52The course her Honour took amounted to permitting the respondent to reopen his case, which would then be adjourned, to determine whether the prosecutor could prove the binding force of the restraining order at the relevant date. He had failed to provide that proof, in effect in the mistaken belief that no evidence other than that which had been adduced was required. In those circumstances, in my view, the decision to allow the prosecutor to reopen his case was clearly justified: Henning v Lynch [1974] 2 NSWLR 254, 259; Williams v Berini [1960] WAR 21, 22.
53The interests of justice clearly favoured that course. If the binding operation of the restraining order could be proved, the court could focus its attention upon the question of its breach. In that event, the appellant suffered no relevant prejudice. If it could not be proved, he would ultimately be entitled to his acquittal.
The question whether the interests of justice favour allowing the prosecution to re-open its case appears to me to be less likely to raise significant issues in the context of permitting proof of formal matters to be tendered after a formal closing of the Crown case and before the defence has opened its case than in circumstances where the prosecution case has literally been split. Nevertheless, I record my conclusion that in this case there was no prejudice and no injustice caused to the defendant by the Magistrate’s decision.
That conclusion relies on the fact that the full description of the breath screening device, sufficient to identify it as a prescribed device, was set out at several points in the prosecution brief that had been available to the defendant from an early stage, and that whether the device used was in fact a prescribed device was clearly not in issue between the parties. At an early stage of the hearing, his Honour asked counsel about what matters were in dispute, and defence counsel said:
Well, it’s not in dispute that the officer was authorised. It’s not in dispute that the instrument was authorised. It’s not in dispute he was the driver of a vehicle on a public or road, public street or road related area. It’s not in dispute that the screening device produced a positive result which resulted him going into custody. All those things, your Honour. The focus is going to be on what happened at the station at the time of the breath analysis.
After the Magistrate indicated that he would permit the prosecutor to call the necessary evidence, defence counsel discussed the practicality of making an admission but indicated that he was not in a position to prepare a formal admission document quickly and that taking the evidence orally would be more efficient. As already mentioned, there was no cross-examination of the witness who gave the formal evidence.
Policy considerations
Counsel for the appellant submitted that, if the Crown is permitted to re-open its case to fill in a gap in the evidence that has been identified in a no case submission, then defendants will refrain from making no case submissions and will defer any complaint about the evidence to any subsequent appeal.
Counsel is correct that the possibility of the prosecution being permitted to re-open its case to fill gaps in the evidence (as well as, presumably, the possible existence of relevant evidence) is a matter that needs to be considered by defence counsel before making a no case submission, but that possibility does not seem to me to have the disruptive potential identified by counsel.
For a start, the cases make it clear that an application to re-open the prosecution after the defence case is closed will be more difficult to argue, and there will be a greater risk that the court will find prejudice to the defendant from any re-opening – except in the case where the missing evidence is essentially formal and relates to a matter that is not genuinely in dispute. That is, where the no case submission relates only to the absence of formal evidence, there may be no particular benefit in refraining from drawing attention to the deficiency in the evidence until after the defence case is closed, and there are also risks in deliberately refraining from drawing attention to a gap in the evidence during a trial and then seeking to rely on it on appeal.
Furthermore, counsel’s concern about the practical impact of the principle relied on by the Magistrate implies that the principle is new, whereas the directly relevant cases relied on by the respondent and by which I have been convinced are mainly fairly old cases. The approach defended by the respondent in this case is not a new approach that, once recognised, may cause a change in counsel’s approach to no case submissions leading to new inefficiencies in court processes. Nor is it an approach that could be said to have been recently undermined by the decisions in Manyam and O’Meara. Rather, it is an approach that seems to be so old and well-established that it rarely gives rise to any argument.
Finally, it must also be remembered that, as was said in R v Wilson (2005) 62 NSWLR 346 at 353 [24] by Hunt A-JA with whom Grove and James JJ agreed:
The right to a fair trial operates not only in favour of the accused; the Crown, which prosecutes on behalf of the whole community, also has a right to a fair trial.
Conclusions
Nothing in the authorities relied on by the appellant persuades me that the Magistrate should not have permitted the prosecution to re-open its case, before the defence was called on to respond to that prosecution case, in order to prove a “purely formal matter the proof of which was overlooked in chief”.
The appeal is accordingly dismissed, and the orders of the Magistrates Court are confirmed.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Chief Justice Penfold. Associate: Date: 24 October 2014 |
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