DPP v Garrett
[2016] VSCA 31
•7 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0235 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| CASEY GARRETT (a pseudonym)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGES: | MAXWELL P and REDLICH and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 February 2016 | |
DATE OF JUDGMENT: | 7 March 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 31 | |
JUDGMENT APPEALED FROM: | DPP v [Garrett] (Unreported, County Court of Victoria, Judge Lawson, 24 November 2015) | |
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CRIMINAL LAW – Interlocutory appeal – Intentionally causing injury – Evidence – Witnesses – Meaning of ‘unfavourable’ – Whether evidence given by witness is unfavourable to party calling witness – Judge not required to determine facts likely to be established by preponderance of evidence – Whether case of party clearly identifiable – Observations in Queen v Kneebone (1999) 47 NSWLR 450 concerning ‘case theory’ distinguished – Leave to cross-examine – Discretion to give leave to cross-examine – Evidence Act 2008, ss 38, 192 and 192A.
CRIMINAL LAW – Practice – Interlocutory appeal on question of evidence other than admissibility – Section 295(3)(b) Criminal Procedure Act 2009 – Observations in CGL v DPP (2010) 24 VR 482 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K G Gilligan with Mr B Sonnett | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr C J Winneke SC | Tony Hargreaves & Partners |
MAXWELL P
REDLICH JA
BEACH JA:
Summary
The respondent (‘CG’) is facing trial in the County Court on a charge of intentionally causing injury. Before trial, the Crown applied for an advance ruling under s 192A of the Evidence Act 2008 (‘the Act’), seeking leave under s 38(1)(a) of the Act to cross-examine one of its own witnesses. The witness in question was an eyewitness whom the Crown were obliged to call.
The judge refused the Crown’s application, holding that the evidence of the particular witness was not ‘unfavourable’ to the Crown, within the meaning of that provision. The judge certified that the decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. The Crown by way of interlocutory appeal seeks leave to challenge the judge’s decision refusing the application.
When an interlocutory decision concerns the admissibility of evidence, the scope for interlocutory appeal is heavily circumscribed. Section 295(3)(a) of the Criminal Procedure Act 2009 provides that no application for leave to appeal may be made unless the judge who made the decision certifies that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
As Maxwell P pointed out in CGL v DPP [No 2]:[2]
It was obviously necessary to establish a threshold test before evidentiary questions could be the subject of an interlocutory appeal. Otherwise this court would be inundated with applications for leave to appeal regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials. It is important, therefore, that trial judges and prosecutors exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this court become bogged down, in a way Parliament cannot possibly have intended, with applications for leave to appeal against evidentiary rulings.
[2](2010) 24 VR 482, 483 [5] (‘CGL’).
As the interlocutory decision in the present case did not concern admissibility, the applicable provision is s 295(3)(b) of Criminal Procedure Act 2009, which precludes an interlocutory appeal unless the judge certifies that the decision ‘is of sufficient importance to the trial’ to justify it being determined on an interlocutory appeal. In order to determine whether the issue is of ‘sufficient importance’ to the trial, the trial judge must have regard to the nature of the issue and the relevant circumstances of the case.
In our view, where a ruling concerns an evidentiary question other than admissibility, the matters adverted to in CGL should inform the decision whether to grant a certificate. In the circumstances of this case, the question of whether the prosecution should be given leave to cross-examine a witness whom it is obliged to call was sufficiently important to the trial to warrant the grant of a certificate.
The present ruling raises questions as to the correct construction of s 38(1)(a) of the Act, the meaning to be given to the word ‘unfavourable’, and the matters that may be considered in evaluating whether the evidence is unfavourable. The resolution of these questions is of importance to trials generally. They are questions likely to arise recurrently in relation to witnesses whom the prosecution is obliged to call. It is therefore in the interests of justice that leave to appeal be granted.[3]
[3]Criminal Procedure Act 2009, s 297(1).
In our respectful opinion, the trial judge erred in her interpretation of what is meant by evidence that is ‘unfavourable’ to the party who called the witness. Moreover, her Honour was persuaded to adopt an incorrect approach to evaluating whether the witness’s evidence was unfavourable to the prosecution case. She undertook an evaluation of all of the evidence that was to be called, determined what in her opinion the preponderance of the evidence would establish, and found that the witness’s evidence was not inconsistent with those facts.
With respect, it is not the trial judge’s task on an application under s 38(1)(a) to determine what facts are likely to be established by the preponderance of evidence. Here, the nature of the prosecution’s case was clear from its opening and from certain evidence to be called by the prosecution which, if accepted, established that case. The evidence to be given by the witness was plainly ‘unfavourable’ to that case. The trial judge should have so found.
We will, accordingly, grant leave to appeal, allow the appeal and set aside the ruling. Whether leave to cross-examine should be granted is a matter for the trial judge’s discretion. The parties agreed on the appeal that the question would best be left until the point in the trial when the witness was called to give evidence, at which stage the matters referred to in s 38(6) and s 192(2) can best be assessed.
Background
As we have said, CG is facing trial in the County Court on one charge of intentionally causing injury and an alternative charge of recklessly causing injury to BD (‘the complainant’). The Crown case is that CG, who is a police officer, assaulted BD, following his apprehension by police on 11 June 2011.
On 23 November 2015, prior to a jury being empanelled, the Crown sought an advance ruling that it have leave under s 38(1)(a) of the Act to cross-examine a prosecution witness, KB, on the basis that his evidence was ‘unfavourable’.
Consistent with notions of fairness, it was entirely appropriate that the Crown gave advance notice of its intention to seek leave to cross-examine the witness. The giving of early notice is a matter made relevant to the judge’s discretion by s 38(6)(a) of the Act. Section 192A(b) of the Act provides that, where the trial judge considers it appropriate to do so, the judge may give an advance ruling about
the operation of a provision of this Act … in relation to evidence proposed to be adduced.
Section 38(1) of the Act relevantly provides:
(1)A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a)evidence given by the witness that is unfavourable to the party; or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
As already mentioned, her Honour refused the Crown’s application as she was not satisfied that the evidence of KB was ‘unfavourable’ within the meaning of s 38(1)(a).[4] On application by the prosecutor, the judge certified pursuant to s 295(3)(b) that her decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
[4]As noted at [44], her Honour expressed herself as not being satisfied ‘that KB was unfavourable’.
The Director of Public Prosecutions seeks leave to appeal on the ground that the judge
erred in refusing the application pursuant to s 38(1)(a) of the Evidence Act 2008 on the basis that the evidence of [KB] was not ‘unfavourable’.
The Crown case
The Crown alleges that, on the evening of Saturday 11 June 2011, police observed the complainant driving his motor vehicle at a fast rate of speed. A pursuit was commenced and the vehicle was eventually apprehended. As the complainant was getting out of the vehicle, the police pulled up nearby. At least one of the apprehending police officers had a firearm out and pointed it towards the complainant. The complainant was told to lay on the ground and did so. The complainant’s three passengers (EL, EA and CJ) were also told to lie on the ground and did so. The complainant was then handcuffed with his hands behind his back.
Other police then attended the scene, including CG and KB. The Crown alleged that CG and KB lifted the complainant to his feet and proceeded to walk him some distance further down the lane in which the complainant’s vehicle was situated. The complainant was then allegedly pushed to the ground face down and struck numerous times with an object to both sides of his face.
The summary of the prosecution opening describes the Crown case against CG in the following terms:
As he [the complainant] was being struck by this object [CG] started to talk to him as he hit him. [CG] said that he had put members at risk because of the pursuit and that when he was interviewed he had to say that he was a fuckwit and a reckless driver. He went on to tell [the complainant] that he had to say that he was very sorry in the interview. [CG] asked him ‘what do you call what you did?’ and [the complainant] replied, ‘it was stupid’. He was then hit on the side of the head and [CG] said ‘no it was reckless’. [CG] said he was going to be in on the interview and that [the complainant] had to say what he’d been told otherwise [CG] would come find him and get him. He [CG] also told [the complainant] that he should say the injuries he had sustained were from falling over after being walked away from the initial place where he had been handcuffed when he was moved from one position to the other.
The evidence proposed to be called at trial
The Crown alleges that CG assaulted the complainant. With the exception of KB, from whom evidence was taken on a voir dire before the trial judge, no evidence has yet been given at trial. The respondent’s written case and the trial judge’s reasons proceeded upon the assumption that the Crown’s application fell to be considered by reference to the evidence given by KB on the voir dire, and all of the evidence that it might reasonably be anticipated (from an examination of the depositions) would be given by the various other witnesses at trial. Accordingly, we shall set out that evidence although, for the reasons that follow, it was unnecessary for the judge to have undertaken an evaluation of that evidence.
The complainant participated in a record of interview at 12:45 am on 12 June 2011. In that record of interview, he made no reference to having been assaulted. When asked about abrasions on his face, he answered:
I tripped over a stick as you were walking me over and I fell onto more sort of sticks that were on the ground because there was that sort of stuff everywhere, yeah, and I’ve cut myself up.
In a statement taken at 8:30 am on 12 June 2011, the complainant gave a version of events consistent with his record of interview. In two subsequent statements, however, the complainant alleged that he was assaulted by CG. In one of those statements, the complainant said:
One of the police said he would talk to me. I know his name is [CG].
We walked more than fifteen metres away and crossed the dirt lane we were in. He pushed me to the ground face down and he started to hit me with what I thought was his baton. I started to eat dirt, it was on soft ground and I didn’t feel myself hitting anything hard or hitting the ground hard. There were no rocks or sticks that I hit while I was on the ground. I was still in handcuffs with my hands behind my back. I could not protect myself. I thought he was going to kill me. As he was hitting me I was crying out in pain as I was getting hit quite hard. I was lying face down and he belted me to the side of the head. I lost count of [sic] times he hit me. I just remember it was a lot. I didn’t hear any police officers nearby. He started talking to me while he continued to hit me on both sides of my head with the baton. He said that I had put members at risk because of the pursuit and he said that in the interview I had to say that I am a ‘fuckwit’ and that it was ‘reckless driving’.
EL has provided two statements. In his first statement, EL said that after the occupants of the complainant’s car were segregated, he heard a voice which he knew to be the complainant. It sounded like the complainant was crying. In a subsequent statement EL said:
At no time did I see any person being assaulted, at one point I heard [the complainant] sobbing, I thought he was like that because of the trouble we were in as he already had being [sic] freaking out.
EA has provided three relevant statements. In his first statement, EA makes no reference to hearing or seeing anything relevant so far as the complainant is concerned. In one of his subsequent statements, EA stated:
[The complainant] was moved away from where I was, I could not see him. I heard at one stage what I believed to be a solid object hitting someone. As this happened I heard [the complainant] cry out, ‘ah fuck’ I could hear him crying out. When I heard what I’ve described as the object striking someone I believe this to have occurred about four times. I can’t be sure.
In the other statement made subsequent to his first statement, EA said:
I heard someone getting taken further up the driveway which was the same distance again. I presumed this was [the complainant]. I heard feet scraping the ground as if you were walking without lifting your feet.
I then heard at least six hits with something firm. It sounded like someone getting hit with a garden stake or a baton, something hard. It was a heavy object. It sounded like a clap. Something hitting the skin. I thought this at the time.
Every time I heard a hit, I heard a yelping. I recognised the yelping voice as [the complainant]. It sounded like he was trying not to cry.
CJ has made three statements concerning the evening in question. In the first statement, nothing was said about any assault on the complainant. In the second statement, CJ asserts that he (CJ) was ‘a bit roughed up’, before saying:
I did not see anyone else get assaulted that night. I did hear [the complainant] crying out. I heard him say ‘what did I do wrong?’. He said this a couple of times.
I could hear him moaning, I was not in a position to see what was going on. I am positive it was his voice and recognise it easily.
In his third statement, CJ said:
I was laying on the ground. Face down. They pulled the hoodie over my head.
While the hoodie was over my head, I heard a voice I know as [the complainant’s] yelping out. It sounded like he was being hit. I heard him being struck by what I thought was a baton. This occurred about 10 times.
…
I could hear him being beaten quite clearly. The police would have definitely been able to hear him being beaten.
One of the police officers who attended the scene, DJ, has given a statement. In his statement, DJ describes the complainant being separated from the other passengers in the vehicle by CG and KB. In his statement, DJ says:
Since the evening of Saturday the 11th June 2011 I have been made aware of allegations of assault by [the complainant] against [CG]. At no stage did I witness any alleged assaults.
Three other police officers attended the scene. These three officers (whom the Crown also intends to call at trial) will apparently give evidence that, while they too were present at the scene at the time of the alleged assault, they did not see or hear any such event occur.
The complainant was examined by medical practitioners, Dr BR and Dr MS, in the hours following his alleged assault. Dr MS took a history:
A police officer took him aside from everyone and started to assault him, hitting his head with a baton.
Dr BR, in answer to specific questions, has expressed the opinion that he would have expected to see a more persistent lesion than one appearing in a photograph of the complainant following a strike with a police baton.
Opinions have been sought from a consultant forensic pathologist and a medical practitioner at the Victorian Institute of Forensic Medicine (‘VIFM’) as to the likelihood that the injuries the complainant was observed to be suffering from were caused by a fall. The consultant forensic pathologist has expressed the following opinion:
In summary, I firmly remain of the opinion that the constellation of injuries present on [the complainant], following the alleged incidents in the laneway could not all have been produced in the scenario presently provided by the police.
To like effect, the report of the medical practitioner at VIFM states:
There is objective evidence of multiple sites of recent blunt trauma to the subject’s face. This is manifest by the presence of extensive bruising to the front and both sides of the face, and multiple small abrasions.
…
The patterned (tramline) bruise on the neck is the result of a linear object impacting on the skin. Given its location, this is more likely to be a blow with a linear object rather than an impact onto a surface. A linear object might include a rod, baton, stick or similar shaped object.
…
I cannot reconcile the injuries as being the result of a simple fall. Whilst it is possible that some of the injuries might have occurred in such a fashion, the injury pattern (location, number and type), is highly suggestive of assaultive [sic] event.
The evidence of KB
On 6 December 2011, a statement was taken from KB. Before the judge, the prosecutor described this statement as ‘exculpatory of the accused’. The statement contains the following relevant passage:
I assisted [CG] escort [the complainant] from the vehicle and in a similar direction to where I had just prior walked [CJ]. [The complainant] was instructed to walk past where [CJ] was still lying and did so from this point without my assistance. Approximately three metres past [CJ], the complainant] lost his balance and fell face first to the ground. I was not sure if he was able to ‘cushion’ his fall but when I assisted him to his feet, with the assistance of [CG], I observed him to have visible scratch marks to above his left eye. I had not noticed these marks on his face prior to this, but was unsure if they occurred when he fell or were already present prior to our arrival.
KB gave evidence before the judge. The prosecutor asked him to identify his statement and then tendered the statement. The prosecutor did not seek to ask KB any further questions. KB was then cross-examined by counsel for CG. In the course of that cross-examination, KB gave evidence that he was present with the complainant at all relevant times when CG was also in the company of the complainant. KB was asked and answered the following questions:
Now you’re aware of the allegation that’s been made by [the complainant] that he was assaulted?---Yes I am.
What do you say as to that allegation in so far as your knowledge when you were there, what could you see?---It just didn’t take place. I, I was there.
The judge’s ruling
In a detailed ruling, the judge set out the circumstances leading to the alleged assault and the evidence which it was anticipated would be given by relevant witnesses concerning the complainant’s allegations.
Her Honour recorded the prosecutor as having ‘correctly conceded that evidence will not be unfavourable merely because it did not fit within a particular case theory postulated by the prosecution’. (We deal with this proposition below). At the same time, she noted the prosecutor’s submission that he was not relying on a ‘case theory’.
The trial judge referred to the submission of CG that the medical evidence in the depositions was inconsistent with the Crown case. Such evidence, it was submitted, made it unlikely that CG was struck with a baton or like instrument. In setting this evidence out, the judge also dealt with evidence given during cross-examination at committal — including concessions made by one medical witness that the injuries found on examination were not consistent ‘with a person who had been the victim of repeated significant blows to the head … [by a baton]’. But it was acknowledged by the respondent’s counsel on the appeal that the trial judge made no reference to the fact that, according to the medical evidence, the injuries to the complainant’s face could not all be explained by him having fallen, face first, to the ground. (That was the defence explanation for his injuries).
The trial judge also referred to other evidence relied upon by counsel for CG that was said to be inconsistent with the complainant’s account. The judge recorded the submission of counsel for CG as follows:
He submitted in conclusion, save for the existence of [BD] and [EA], which in the light of the medical evidence, must be cast in real doubt, there is no significant body of evidence with which the evidence of [KB] is inconsistent. He submitted, therefore, he [KB] is not ‘unfavourable’.
Immediately prior to expressing her conclusion her Honour again referred to the fact that the prosecutor accepted that evidence will not be unfavourable merely because it does not fit within a particular ‘case theory’. Her Honour noted that the prosecution contended it was not relying upon a ‘case theory, rather the prosecution case is that the complainant’s evidence of being assaulted by [CG] is a truthful account’. It was said that the evidence of KB directly contradicted that case.
The judge then concluded as follows:
I note that the prosecution case is that [the complainant] was pushed to the ground, face down and then was struck numerous times with an object to both sides of his face. The preponderance of medical opinion simply does not support that conclusion. Therefore it cannot be said that [KB’s] evidence is quite inconsistent with the medical evidence relied upon by the Crown.
I accept [the] submissions [of counsel for CG]. Overall, I am not satisfied that [KB] is ‘unfavourable’ within the meaning of the law and therefore the application is refused.
When is evidence ‘unfavourable to the party’?
Where s 38(1)(a) is relied on, the party who called the relevant witness must establish that the evidence about which it wishes to cross-examine the witness is
evidence … that is unfavourable to the party.
Section 38 has enlarged the circumstances which had existed at common law in which a party might be granted leave to cross-examine his or her own witness.[5] In particular, it is not necessary to demonstrate hostility by the witness to the party who has called him/her. As Curtain J said in R v McRae:[6]
In R v Lozano (Lozano’s case), it was acknowledged that the purpose of the section was to ensure that the courts are not deprived of relevant testimony which had previously been excluded by operation of the hostile witness rule. The Australian Law Reform Commission, in its report of 2005, refers to the guiding principle under s 38 as ‘improvement in fact-finding by enabling a party who calls a witness to challenge unfavourable evidence by cross-examining that witness’, and the report comments that the principle has been upheld by the operation of the section over the ten years since its inception, as it then was, and that despite some criticism, it had received strong judicial support.[7]
[5]See, J D Heydon, Cross on Evidence, (LexisNexis, 9th ed, 2013) [17405].
[6][2010] VSC 114 (‘McRae’).
[7]Ibid [21].
The argument before the judge appears at times to have proceeded on the basis that the question was whether KB was an unfavourable witness. And the judge expressly stated her conclusion in terms that she was not satisfied that KB was unfavourable. This may reflect the fact that, at common law, the question was whether a witness was ‘hostile’. Under s 38(1)(a), however, the relevant inquiry must be directed at the character of the evidence which the witness gives.
The respondent’s primary submission, accepted by the trial judge, was that the Crown’s allegation — that CG had assaulted the complainant — was no more than a ‘case theory’, having regard to the preponderance of the evidence. The trial judge reasoned that, as KB’s evidence was not inconsistent with the preponderance of the evidence, the Crown case was no more than a theory and, accordingly, KB’s evidence was not ‘unfavourable’.
It is convenient to commence with consideration of authority as to when evidence has been viewed as ‘unfavourable’. R v Milat[8] is one of the earliest and most commonly-cited decisions concerning s 38. In that case, the Crown was obliged to call a witness notwithstanding that the evidence of that witness was unfavourable to its case. The Crown sought to cross-examine the witness to demonstrate that the identifications made were unreliable. Hunt CJ at CL found that, as the reliability of the evidence of such witnesses would certainly not be tested by the accused, and as the Crown was obliged to call the witnesses only out of fairness to the accused, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given. Hunt CJ at CL found these considerations to fall directly within the contemplation of s 38.
[8]R v Milat (Unreported decision, Supreme Court of New South Wales, Hunt CJ at CL, 23 April 1996).
The New South Wales line of authority continues with R v Souleyman, in which Smart J said:[9]
The word ‘unfavourable’ in s 38(1)(a) does not mean ‘adverse’. It means ‘not favourable’. That construction could have wide ranging ramifications but the Court is given a discretion and would carefully examine the circumstances to see how the discretion should be exercised. A far fetched example would be if a witness said he could not remember something that happened three years ago. The discretion is important and designed to prevent any form of abuse in the administration of the more liberal test of ‘unfavourable’.
The NSW Court of Criminal Appeal has, on successive occasions, cited this statement with approval.[10]
[9](1996) 40 NSWLR 712, 715 (‘Souleyman’).
In R v Le,[11] McLellan J also took the view that the word ‘unfavourable’ should be given a broad meaning, thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested. His Honour said:
Only this approach will allow the jury to have the opportunity of coming to an informed view about whether or not the evidence called by the Crown should be accepted. …..
As I have indicated, in the present matter the allegation that Mr Trieu was responsible for inflicting the fatal wound upon the deceased has been raised during the course of the trial. It has been sought by the accused's counsel, and I make no criticism of him in so doing, to support that assertion by obtaining evidence in cross-examination from Mr Carzo and, it is apprehended, by the prospective cross-examination of Mr Lombardie. In this way counsel for the accused seeks to construct an alternate theory of the killing to that which is fundamental to the Crown's case against the accused.
In these circumstances it seems to me that the evidence which was adduced in cross-examination from Mr Carzo, and which is proposed to be adduced in cross-examination of Mr Lombardie, is evidence which is unfavourable in the relevant sense to the Crown. Furthermore, in my opinion, if that evidence was allowed to be adduced without an opportunity to test its reliability, it is possible that the outcome would be unjust to the Crown in the sense that expression was used by Hunt J in Milat.[12]
[11][2001] NSWSC 174.
[12]Ibid [15], [18]-[19].
These considerations were reaffirmed in Kanaan v R,[13] in the joint reasons of the NSW Court of Criminal Appeal (Hunt AJA, Buddin and Hoeben JJ). The Court first discussed the consequences of the Crown’s obligation to call all relevant witnesses, including those who may give evidence inconsistent with its case:
Before turning to what the Crown prosecutor should have done before attacking the credit of his own witness, it is important to emphasise that the Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say: Regina v Le (2002) 54 NSWLR 474 at [68]. That is because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused: Richardson v The Queen(1974) 131 CLR 116 at 119. That obligation is imposed on a Crown prosecutor as an incident of his or her position as a ‘minister of justice’: Regina v Puddick (1865) 4 Foster & Finlayson 497 at 499; [176 ER 662 at 663]. See also Regina v Thursfield (1838) 8 Carrington & Payne 269 at 269-270; [173 ER 490 at 491-401]. It is the usual practice in criminal trials that, subject what is said in the following paragraph of this judgment, the Crown accepts an obligation to call witnesses whose evidence is relevant to the Crown case when requested by the accused to do so. When doing so, the Crown prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth. The Crown’s obligation to call such witnesses has been stated more firmly in Regina v Le at [68]. …
In determining whether such a witness should be called by the Crown, rather than leaving it to the accused to do so, the Crown prosecutor — at least where the evidence of that witness is central to the unfolding of the Crown case — may take into account, inter alia, the credibility and truthfulness of the evidence to be given by that witness and whether in the interests of justice it should be subjected to cross-examination by the Crown: Richardson v The Queen at 119. The Crown prosecutor’s decision has been described as a lonely but also a heavy one: The Queen v Apostilides (1984) 154 CLR 563 at 576-577. A refusal to call a particular witness within this category may be justified only by reference to the overriding interests of justice; such occasions are likely to be rare. The unreliability of the evidence will be a sufficient basis for a refusal to call the witness only where there are identifiable circumstances which clearly establish such unreliability; it will not be enough that the prosecutor merely has a suspicion that the evidence to be given by the witness will be unreliable: Ibid at 577. In order to avoid any suggestion that a tactical advantage is sought by not calling a particular witness, it is advisable for the Crown prosecutor to confer with the witness to form an opinion as to the witness’s reliability: Regina v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at [49]–[53].[14]
[13][2006] NSWCCA 109 (‘Kanaan’).
[14]Ibid [80]–[81].
The Court then considered s 38 and the Crown’s opportunity to discredit the witness via s 38 where ‘their evidence does not support the Crown case.’ Having concluded that the word ‘unfavourable’ means merely ‘not favourable’, and that it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party,[15] the Court said:
The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown’s obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of ‘unfairly prejudicial’ in ss 135-136 and of ‘unfair prejudice’ in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [29], [91], [98].
Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act: Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996, at 5-6. (See Evidence Act, s 192(2)).[16]
[15]Ibid [83].
[16]Ibid [84]–[85].
Adams J took a much more circumspect position in R v Pantoja.[17] His Honour said:
It seems to me that some attention will need to be given in due course to the meaning of ‘unfavourable’ so far as the Crown case is concerned. The Crown case is, in essence, the truth, wherever that might lead and even if it leads to a reasonable doubt about guilt. I am far from persuaded that merely because a witness declines to give evidence supporting the theory of the facts for which the prosecution contends or, indeed, gives evidence that contradicts that theory or contention, his or her evidence may thereby be regarded as ‘unfavourable’. How can truthful evidence ever be ‘unfavourable’ from the Crown’s point of view? In the circumstances of this case, however, there were good reasons for concluding that, if not untruthful (and I do not think that this was ever suggested in the sense of being deliberate) the evidence of the witness as adduced by the cross-examination was doubtful, even if (by parity of reasoning) the evidence adduced in chief by the Crown was also doubtful.[18]
[17][1998] NSWSC 565.
[18]Ibid 25.
This reasoning was distinguished in subsequent cases. In R v Ronen,[19] Whealy J referred to Pantoja,[20] but granted leave to cross-examine because the evidence of the witness was not merely unhelpful to the party who had called him but positively embraced the other party’s case.[21] In R v Tran,[22] the Crown called a witness (Turner) whose evidence was inconsistent with the Crown case as opened and with the evidence of Crown witnesses who had already testified. Lasry J, in granting leave to the prosecutor to cross-examine, distinguished the obiter observations of Adams J and Greg James J inPantojaand Kneebone in these terms:
[T]hey have no application to the circumstances before me. The prosecutor’s application is not based on the witness’s conflict with a prosecution theory – there is a respectable argument to be made that Turner’s evidence is genuinely unfavourable to the prosecution case as it was opened and as it currently stands after nine witnesses have been called. In my opinion, Turner’s evidence is inconsistent with a significant part of that evidence.[23]
[19][2004] NSWSC 1298.
[20]Ibid [70].
[21]Ibid [62].
[22](2013) 229 A Crim R 213 (‘Tran’).
[23]Ibid 222 [31].
As the High Court noted in Adam v R:[24]
The trial judge said, when the application for leave was made in front of the jury, that he was satisfied that the provisions of s 38(1)(a), (b) and (c) were satisfied and he granted leave under both s 38(1) and s 38(3). As has already been noticed, the evidence which Thaier Sako gave to the jury did not assist the prosecution. The judge formed the view, on the voir dire, that he was not making a genuine attempt to give evidence and went so far as to find that the version he had given in the interviews ‘more probably than not reflected his observations on the night’. It may be doubted that it was necessary for the judge to form a view about where the truth probably lay. The finding which his Honour made was, however, a finding which clearly bore upon the question presented by s 38(1)(b): was the witness, in examination in chief, making a genuine attempt to give evidence? Given that the witness had made prior inconsistent statements, there is no doubt, then, that pars (b) and (c) of s 38(1) were satisfied. It is not necessary in those circumstances to consider whether par (a) was also met. There appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without ‘making a genuine attempt to give evidence’, is to give evidence ‘unfavourable’ to that party.
The judge, in considering whether to grant leave to cross-examine, took account of the several matters which the parties advanced as bearing upon that question. It is not necessary to notice the detail of them, beyond noting that the trial judge formed the view that if leave were given, the accused persons would not experience any unfairness. Not only, in the judge's view, was it to be expected that the witness would give a version of events in evidence in chief that was likely to be contradictory of the prosecution case and favourable to the accused, it was expected that he would be co-operative when cross-examined by defence counsel. The judge referred expressly to the various considerations mentioned in s 192(2) of the Act.[25]
[24](2001) 207 CLR 96.
[25]Ibid [27]-[28] (emphasis added).
In Klewer v Walton,[26] the NSW Court of Appeal held — without reference to authority — that a witness’s evidence could not be said to be ‘unfavourable’ within the meaning of s 38(1)(a) since it was ‘neutral’. In Hadgkiss v Construction, Forestry, Mining & Energy Union,[27] Graham J in the Federal Court declined to follow Souleyman and expressed a preference for the approach in Klewer. His Honour said:[28]
As I see it, for evidence to be characterised as ‘unfavourable’ it would have to detract from the case of the party calling the witness.
In his Honour’s view, what was said by the High Court in Adam v The Queen seemed to suggest that
for evidence to be characterised as unfavourable, it must have an unhelpful quality about it, as opposed to a neutral quality.[29]
[26][2003] NSWCA 308.
[27](2006) 152 FCR 560.
[28]Ibid 562 [9].
[29]Ibid.
This question has also arisen in a series of cases in the Trial Division of this Court. In McRae,[30] Curtain J concluded that the authorities favoured the Souleyman test, rather than the ‘more restricted approach’ suggested in Hadgkiss.[31] In Tran,[32] Lasry J applied the Hadgkiss test and concluded that s 38(1)(a) applied, as the evidence of the particular witness was ‘distinctly unhelpful’. Most recently, in The Queen v Rapovski,[33] Beale J referred to McRae and applied what his Honour described as ‘the broad view’, taken from Souleyman.[34]
[30][2010] VSC 114.
[31]At [24].
[32](2013) 229 A Crim R 213.
[33][2015] VSC 355.
[34]At [27].
At this point it is convenient to turn to the authority upon which the respondent relied in raising the argument that evidence is not ‘unfavourable’ merely because it is inconsistent with a ‘case theory’. In The Queen v Kneebone,[35] the NSW Court of Criminal Appeal stated that there had been ‘various views taken in the Court’ as to the meaning of the word ‘unfavourable’ in s 38. The case concerned the prosecutor’s failure to call a relevant and material witness on the basis of asserted unreliability, when the prosecution had not taken any steps to enable proper consideration of that question. In dealing with that issue, Greg James J (with whom Spigelman CJ agreed) said:
In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice. Apostilides (supra) deals with the consequence of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: Regina v. Anderson (1991) 53 A. Crim. R. 421.
...
In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with a theory of the accused's guilt.[36]
[35](1999) 47 NSWLR 450 (‘Kneebone’).
[36]Ibid 460, 462 [50], [57] (emphasis added).
Greg James J did not find it necessary to consider whether the Crown might have been able to successfully apply under s 38 of the Evidence Act1995 to cross-examine the witness had it called him. By way of dicta, his Honour nonetheless made certain observations concerning s 38 on which the respondent in the present case placed particular reliance before the trial judge.
Section 38 of the Evidence Act refers to the concept of the witness being ‘unfavourable’. In the context of a criminal case, care may have to be given to the question of what ‘unfavourable’ to the Crown means. That concept will not necessarily be satisfied simply because the witness’s potential testimony does not accord with some prosecutor's view of the appropriate ‘camp’ or some case theory which does not accord with all the otherwise reliable evidence.
There have been various views taken in the court as to the meaning of ‘unfavourable’ in s.38 of the Evidence Act (see Regina v. Milat (Hunt, CJ. at CL., unreported 23 April 1996); Regina v. Lozano (CCA, unreported 10 June 1997); Regina v. Souleyman (1996) 40 NSWLR 712; Regina v. Pantoja (CCA, unreported 5 November 1998); Regina v. GAC (CCA, unreported 19 December 1996); Regina v. Adam & Adam (Wood, CJ. at CL., unreported 24 November 1998, 3 December 1998, 11 December 1998); on appeal Regina v. Adam & Adam (CCA, unreported 23 July 1999); Regina v. Patsalis & Spathis (No. 10) (Kirby, J., unreported 10 August 1999). Those views properly reflect the object of s 38 of the Evidence Act to provide a wider entitlement than … its predecessor. That provision dealt with the circumstances of a witness proving ‘adverse’. However, the full width of any entitlement under s 38 and the criteria for the proper exercise of discretion to permit cross-examination remain to be settled.[37]
[37]Ibid [54]–[55] (emphasis added).
Greg James J went on to refer to an early English decision,[38] which held (in a different statutory context) that ‘unfavourable’ could be equated with giving ‘evidence opposed to the interests of the party who calls him’. His Honour commented:
Such a test would not extend to failing to give evidence which might have been expected and which would have assisted the calling party’s case and is narrower than those applied in some of the decisions to which I have referred.[39]
[38]Greenough v Eccles (1859) 141 ER 315, 323.
[39]Kneebone (1999) 47 NSWLR 450 [55].
Some of these observations — particularly the last of these passages — appear to be contrary to the line of authority in NSW that has followed Milat and Souleyman, and to the way in which s 38 has been approached by judges at first instance in Victoria. Recently, in Doyle,[40] Bathurst CJ (Price and Campbell JJ agreeing) cited Kneebone and said that it may be accepted ‘that evidence is not unfavourable simply because it does not fit a particular case theory of the prosecution.’[41]
[40][2014] NSWCCA 4.
[41]Ibid [292].
In R v SH,[42] Refshauge J referred to the passage in Kneebone and said:
It seems to me, however, that these issues really go to the exercise of the discretion to grant leave rather than to the meaning of ‘unfavourable’. While it may be correct to say that the Crown is to pursue the truth wherever it might lead but that is not inconsistent, it seems to me, with the greatest respect to his Honour, the Crown, having laid certain charges, should be able to test the evidence that is inconsistent with those charges. Wigmore described cross-examination as ‘the greatest legal engine ever invented for the discovery of truth’ (Wigmore, Evidence, Chadbourn Revision (Little Brown & Co: Boston, 1974) Vol 8, para 1367). Where no other party is likely to test evidence inconsistent with the Crown’s allegation, there may well be a need for the Crown to do so in the interests of truth.[43]
[42](2011) 6 ACTLR 1 (‘SH’).
[43]SH (2011) 6 ACTLR 1, 9 [35].
Similarly, in Randall v The Queen,[44] Cox CJ[45] said:
The granting of leave under s 38(1)(a) in no way depends upon some objective assessment by the trial judge when the application is made of the truthfulness of the evidence, the subject of the application for leave to cross-examine on. Indeed, it is only at the conclusion of all the evidence that any proper assessment of the truth can be made by the court. As the Crown's concern should always be to place the truth before the jury, where there is a reasonable basis for presenting a particular version consistent with the guilt of the accused, there is much to be said for the proposition that a material witness such as an eye-witness to the actus reus should be subjected to testing if he or she advances evidence quite inconsistent with that version.[46]
[44](2004) 146 A Crim R 197 (‘Randall’).
[45]With whom Evans and Blow JJ agreed.
[46]Randall (2004) 146 A Crim R 197, 205 [24].
In R v Lane,[47] Campbell J (who was a member of the Court in Doyle) dealt with the concept of a case theory. The witness called by the prosecution, whom it sought leave to cross-examine, had given evidence which Campbell J found would be inconsistent with the Crown case (that the accused had not acted in self-defence). He said:
Unfavourable in s 38 means no more than not favourable. To lawyers imbued with the common law approach, that was a radical, or, at least surprising result. But it is one which is now very firmly established by a series of decisions not only in State courts, including the Court of Criminal Appeal but also the High Court of Australia. It is obviously an undemanding test.
Moreover the procedures made available under s 38 can be invoked even where it is expected that the witness will give ’not favourable’ evidence in contradistinction to the common law position where an element of surprise in that regard was part and parcel of the application that was made during the course of an hostile witness’s evidence.[48]
[47][2014] NSWSC 1430.
[48]Ibid [5]–[6] (emphasis added).
For the purpose of satisfying what Campbell J regarded as the ‘undemanding test’ that the evidence be unfavourable, he considered it appropriate ‘to have regard to the Crown’s opening address.’[49] He then referred to what the Chief Justice had said in Doyle, in the passage quoted above (with which he had agreed). He noted that this passage was quoted in the context of applying the observations in Kanaan. Campbell J found that two passages of the witness’s evidence could easily be accommodated within the Crown case as it had been articulated, whilst a third point could not. After quoting the passage from Doyle, he said:
In my judgment points 1 and 2 fit into that category, that is to say, they may not fit a particular case theory of the prosecution but nor are they inconsistent with it for the reasons I have given. However it does seem to me that point 3 is directly “not favourable: to the Crown case and indeed is entirely inconsistent with the Crown case. During the course of his opening, the Crown prosecutor referred to evidence, particularly that coming from the Commonwealth Bank CCTV footage, which he said would show that the accused was uninjured in the exchange with Mr Morris. Moreover as I have already pointed out, the Crown case, as it must be, is that any deliberate act by way of a punch of the accused was not struck in self-defence. The description by Ryan Lane of injuries on his father, it must be said, of some severity, immediately following the exchange with Mr Morris and Mr Schwager is, I will content myself with applying the statutory test, not favourable to the case that no act of self-defence is responsible for Mr Morris’s death. Therefore, to that extent I am satisfied that the evidence likely to be given by Mr Ryan, for the purpose of this advance ruling, is unfavourable to the Crown.[50]
[49]Ibid [9].
[50]Ibid [13] (emphasis added).
Conclusion
The word ‘unfavourable’ is not defined in the Act. It is an ordinary English word and, on accepted principles of interpretation, should be given its ordinary meaning. Perhaps unsurprisingly, the principal dictionary definition of ‘unfavourable’ is ‘not favourable’. Other meanings given include ‘disadvantageous’, ‘adverse’ and ‘ill-disposed’.[51] In turn, the word ‘favourable’ is defined to mean ‘affording aid, advantage, or convenience’[52] and ‘advantageous, convenient; facilitating one’s purpose or wishes; helpful, suitable’.[53]
[51]Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) 1795; Angus Stevenson (ed), Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007) vol 2, 3482.
[52]Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) 605.
[53]Angus Stevenson (ed), Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007) vol 1, 924.
Nothing in the context, either of s 38 or of the Act as a whole, requires any departure from that approach to interpretation. As the High Court said in Spencer v The Commonwealth:[54]
The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase … is to be avoided.
[54](2010) 241 CLR 118, 141 [58].
Axiomatically, it is the words of the statute themselves which must govern the interpretation. As the authorities have made clear, ‘unfavourable’ means simply ‘not favourable’.[55]
[55]R v Souleyman(1996) 40 NSWLR 712, 715; R v Fowler[2000] NSWCCA 142 [121] (Wood CJ at CL); R v Glasby(2000) 115 A Crim R 465 (Stein JA, Hulme and Greg James JJ); R v Velevski (No 2) (1997) 93 A Crim R 420; Kanaan v R[2006] NSWCCA 109 [83]; R v Adam(1999) 47 NSWLR 267, 277 [99]; R v Ronen [2004] NSWSC 1298 [49]; R (Cth) v Petroulias (No 29) [2007] NSWSC 1005 [11]; R v Lane [2014] NSWSC 1430 (Campbell J).
This being a uniform provision applying in several jurisdictions, principles of comity mean that the interpretation adopted by other intermediate appellate courts should be applied in Victoria. The predominant line of authority in all relevant jurisdictions dictates that the phrase ‘unfavourable to the party’ must be taken to mean unfavourable to the case which the party is seeking to advance in the proceeding. Whether evidence is unfavourable to the case that the party is seeking to prove will depend upon the circumstances of each case.
The party’s case may be discerned from its opening, its pleadings and/or the evidence which the court has already heard or which is proposed to be called. If the evidence of the witness called by that party is inconsistent with, or ‘likely to be contradictory’ of, that identified case,[56] it will ordinarily satisfy the description of ‘unfavourable’.
[56]Adam v The Queen (2001) 207 CLR 96, 107 [28].
The inconsistency or contradictory nature of the evidence may arise because the witness asserts a fact — or fails to give evidence of a fact — in circumstances that permit the conclusion that his evidence is unfavourable. Evidence may be unfavourable even if the witness whom it is sought to cross-examine gives no evidence that actually detracts from the case of the party by whom he or she is called. If the party calling the witness contends that the witness should be able to give evidence supportive of that party’s case, and the witness does not give such evidence, that may suffice to make the evidence given by the witness ‘unfavourable’ within the meaning of s 38.[57]
[57]Cf Evidence Act 2008 s 38(1)(b).
In our view, what was said in Kneebone about ‘case theory’ was not intended to lay down, and should not be taken as having laid down, any ‘rule of exclusion’ for the purposes of s 38(1)(a). Whatever was meant by a ‘case theory’, it does not encompass a clearly identifiable case that the party calling the witness is seeking to establish. This explains why, in a number of cases at first instance as well as in intermediate appellate courts, evidence has been held to be unfavourable on the basis that the impugned evidence is inconsistent with the opening of the party or direct evidence adduced or to be adduced by the party.[58] In our respectful view, the approach taken by Cox CJ in Randall (above) is correct.
[58]R v SH, MV and KC (2011) ACTLR 1; R v Lane [2014] NSWSC 1430; Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111 [184].
With great respect to the trial judge, we think that the present case provides a very clear example of evidence which is ‘unfavourable’ in this sense. Put shortly, the prosecution’s case is that the accused assaulted the complainant. The complainant will so testify. The evidence which KB is expected to give is directly to the contrary. As already noted, KB — who was in a position to observe what occurred — will say that there was no such assault. Plainly enough, that evidence is unfavourable to the Crown’s case.
For the reasons we have given, on the proper construction of s 38(1)(a) the only conclusion reasonably open was that the evidence given by KB was ‘unfavourable’ within the meaning of s 38 of the Act.
Where the party’s case is clearly identifiable, the evidence of a witness called by a party will not cease to be unfavourable simply because there is other evidence inconsistent with that party’s case. In order to determine the threshold question, a judge is not called upon to ascertain whether the preponderance of the evidence will substantiate the party’s case, nor to make some objective assessment of all of the evidence to ascertain where the truth lies. The trial judge was wrongly persuaded that she should undertake such an assessment.
This case also illustrates the dangers of a trial judge attempting to assess the strength of a party’s case. Generally, not all of the evidence will have been heard at the time the application for leave to cross-examine is made. In this case, as already noted, the application was made before any evidence was called during the trial. As we have mentioned, the trial judge appears to have overlooked one important aspect of the medical evidence, which provided strong support for the proposition that the complainant could not have sustained all of the injuries to his face by falling to the ground as the defence claimed.
We turn now to the issue of discretion. Because of her Honour’s conclusion on the issue of whether the evidence of KB had been shown to be unfavourable, she did not deal with the question of discretion. In the circumstances, we do not think it is for this Court to exercise the discretion referred to in s 38 (and governed by ss 38(6) and 192(2) of the Act) in the absence of any consideration by the trial judge.
Matters relevant to the exercise of that discretion are not exhaustively defined in the statute. The trial judge, with access to all of the material and an ability to see and hear the relevant witnesses (as was the case with the evidence of KB on the voir dire), will be much better placed to determine how the discretion referred to in s 38 should be exercised.
In the result, we propose to make orders granting leave to appeal, allowing the appeal and setting aside the judge’s refusal of the Crown’s application to cross-examine KB. We do not, however, propose to make any positive declaration or order. It seems to us that the matter is best remitted to the trial judge for rehearing and determination in accordance with these reasons. The trial judge, with a full appreciation of the case, is better placed to determine on which topics, if any, the Crown should be permitted to cross-examine KB. Further, the proper exercise of discretion on this topic might vary depending upon precisely what evidence is (or is not) given at trial.
Finally, we should deal with a submission made by the Crown in the addendum to its summary of contentions. In the addendum, the Crown appears to submit that no unfairness to an accused can arise for consideration under s 135 or s 137 of the Act once the Court has granted leave under s 38 of the Act. As the Crown puts it:
It seems difficult to understand how evidence admitted under one section of the Act [s 38] can then be excluded under discretionary considerations under another section in circumstances where it is said that the conferral itself results in prejudice to an accused.
All that needs to be said at this stage is that, like any evidence given at trial, evidence given in answer to a question permitted by leave under s 38 of the Act is capable of being excluded by the proper application of any other section of the Act (s 135 or s 137 in the present case) if that other section is properly engaged. That said, ss 135 and 137 of the Act do not themselves provide a basis for rejecting an application made under s 38 of the Act. An application under s 38 of the Act falls to be considered pursuant to the discretion referred to in that section, and governed by the operation of that section and s 192 of the Act.
Leave to appeal will be granted, the appeal allowed and the matter remitted to the County Court to be heard and determined in accordance with these reasons.
- - -
See Kanaan v The Queen [2006] NSWCCA 109 [83]; Doyle v The Queen [2014] NSWCCA 4
[292]–[293] (‘Doyle’).
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