EATE v Police - [2004] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EATE v POLICE
Judgment of The Honourable Justice White
5 November 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - CONDUCT OF PROSECUTION
Appellant convicted of unlawful wounding of his wife - Wife changed her initial statement to police to a version which was exculpatory of appellant - Prosecution elected not to call wife on grounds of unreliability - Prosecution presented other circumstantial evidence - Magistrate determined stay application and no case to answer submission, then immediately delivered judgment - Case to answer - Failure of prosecution to call witness did not constitute abuse of process - Magistrate erred in failing to allow prosecution and defence to make closing arguments - Appeal allowed - Remitted for retrial
Criminal Law Consolidation Act 1935, s 15, s 288B; Summary Procedure Act 1921, s 68, s 69, referred to.
R v O'Brien (1996) 66 SASR 396; Williams v Spautz (1992) 174 CLR 509; Jago v District Court (NSW) (1989) 168 CLR 23; Stead v SGIC (1986) 161 CLR 141; Allen v Gittos (1995) 13 WAR 560, applied.
Police v Gray (2003) 85 SASR 1; Richardson v The Queen (1974) 131 CLR 116; Adel Muhammed el Dabbah v Attorney-General (Palestine) [1944] AC 156; R v Soma (2003) 212 CLR 299; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; R v Shaw (1991) 57 A Crim R 425; R v Kneebone (1999) 47 NSWLR 450; R v Harry; Ex parte Eastway (1985) 39 SASR 203; R v Hoskin (1974) 9 SASR 531; R v Bilick and Starke (1984) 36 SASR 321; Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, considered.

EATE v POLICE
[2004] SASC 340
Magistrates Appeal
WHITE J
Introduction

On 29 July 2004, following a trial before a Magistrate, the appellant was found guilty of unlawful wounding. The prosecution case was that, during the course of a domestic dispute in their home, the appellant stabbed his de facto wife in the chest with a pocket knife, wounding her. This is an appeal against the Magistrate’s decision.
The Trial
The prosecution did not call the appellant’s wife at trial, taking the view that she would not be a reliable witness. Instead the prosecution sought to make out the charge by calling other witnesses. Those witnesses included the police officers who attended at the defendant’s home shortly after the wife was injured, the police officers who interviewed the appellant, the ambulance officers who attended at the home, the doctor who treated the wife at the Flinders Medical Centre and a forensic scientist. In addition, a videotape of the appellant’s interview by the police and a transcript of the conversation which occurred between the appellant and the receptionist who took his 000-call, shortly after the subject incident, were tendered.
In the course of his interview with the police, the appellant admitted to having been drinking heavily prior to the incident and claimed that he was intoxicated. He said he was unable to recall anything as to what had actually happened. The appellant did admit that a knife, which he had pointed out to the police officers who attended in response to his 000 call, was his knife. The appellant admitted that he had made the call to the 000 number requesting the attention of an ambulance. The record of interview is capable of being construed as containing an admission by the appellant that he had stabbed his wife but this is somewhat ambiguous. The appellant did however suggest that the incident was “a domestic” which had got out of control. At no stage during the course of the interview did the appellant suggest that his wife had been stabbed accidentally or in self-defence but he did say, “I did not intentionally hurt my missus”.
The transcript of the 000 call shows that the appellant told the receptionist “Me and me missus just had an argument. I stabbed her. I’m sorry.” Later, a female voice was heard to say, “Oh shit you stabbed me”, to which the caller (and the appellant accepted that he was the caller) said, “I know. I just told them that you silly fool”.
A forensic scientist gave evidence, based on a blood sample, that the appellant’s blood alcohol content at the time of the incident was likely to have been in the range 0.04 to 0.27 mg of alcohol per 100 ml of blood but that the most likely content was of the order of 0.12 mg of alcohol per 100 ml of blood.
Submissions at Close of Prosecution Case
At the close of the prosecution case, the appellant made two submissions to the Magistrate. First, it was submitted that the Magistrate should order a permanent stay of the proceedings. It was said that it was an abuse of process for the prosecution to proceed with the charge without calling the alleged victim of the assault.
Secondly, the appellant submitted that there was, in any event, no case to answer. In the course of his submissions, the appellant’s counsel made it plain that the submissions went to those two arguments and that he was not “making submissions in relation to the trial itself”.
Ms Downey, who appeared for the prosecution at the trial, directed her submissions in response to the submissions of abuse of process and no case to answer. Neither counsel made final submissions on the evidence. The appellant’s then counsel did tell the Magistrate that the Appellant would not be giving evidence. There seems to have been an understanding that the appellant would not call any other evidence at the trial, but the appellant was never formally asked to elect to call no evidence or to close his case.
The Magistrate’s reasons addressed the two submissions of the appellant. He rejected both of the appellant’s applications, refusing to stay the proceedings and finding that there was a case to answer. Then, without hearing further from the parties, the Magistrate gave his reasons for finding the charge proved beyond all reasonable doubt.
The Grounds of Appeal
The appellant raises a number of grounds of appeal.
First, the appellant submits that the Magistrate erred in rejecting the appellant’s application for a permanent stay of the proceedings. Secondly, the appellant alleges that the Magistrate erred in finding that there was a case to answer. Thirdly, it is submitted that the Magistrate erred in finding that there was no evidence to suggest an accidental stabbing, or that the appellant had been so intoxicated as to be unable to form the necessary intent. Fourthly, the appellant submits that the Magistrate erred in finding the appellant guilty in circumstances where the appellant had not been provided with the opportunity to present a final address to the Magistrate. In Ground Five, the appellant raises a similar issue to that raised in Ground Three. The appellant’s sixth ground of appeal is that the Magistrate reversed the onus of proof. Finally, it is submitted that the appellant’s admissions in his record of interview provided insufficient circumstantial evidence to prove the mental element of the offence of unlawful wounding.
In my view, the appeal should be disposed of by only dealing with the first, second and fourth grounds of appeal. If the first ground is upheld, the appellant is entitled to an order staying the proceedings. If the second ground is upheld, the appellant is entitled to an acquittal. If the fourth ground is upheld, the appellant is entitled to a retrial. In that event, it will be either unnecessary, or inappropriate, for me to determine the remaining grounds.
Ground 1: Abuse of Process
The appellant submitted that the Magistrate was in error in failing to find that the omission of the prosecution to call his wife caused him such unfairness as to constitute the proceedings an abuse of process. It was said that the prosecution decision not to call the wife had deprived the appellant of the possible defences of accident and self-defence. The Magistrate was told that the prosecution decided not to call the wife because it was concerned about her veracity as a witness. The prosecution had two quite contradictory statements from her. The prosecution was concerned that the account given by the wife in the second statement had been revised in an untruthful way, perhaps because of her continuing domestic relationship with the appellant, perhaps because of a sense of loyalty to the appellant or perhaps from a combination of like reasons. In short, the prosecution had assessed the wife as not being a reliable or credible witness. It took the view that she was a person who was prepared to give false evidence. It considered that the other evidence adduced by it was sufficient to establish the case against the appellant beyond reasonable doubt.
The Magistrate accepted that the Magistrates Court could stay proceedings on the ground of abuse of process.[1] There was a difference between the parties as to whether such a stay should be permanent or contingent but it is not necessary for me to address that issue.
[1] See Police v Gray (2003) 85 SASR 1.
The Magistrate accepted that an order staying proceedings on the ground of abuse of process should be made only in the exceptional case. After reviewing relevant authorities and the respective submissions of the parties, the Magistrate held:
“I conclude, that given the circumstances of this case there is no unfairness to the defendant arising out of the failure to call [the appellant’s wife], and I decline to exercise the Court’s discretion in staying the proceedings as an abuse of process. I believe that the circumstances of this case are such that the Court should not be distracted from its main purpose of examining the evidence produced rather than speculating on whether the evidence of [the appellant’s wife] would or would not assist the prosecution case.”
The obligation of prosecutors with respect to the calling of witnesses is well known. In Richardson v The Queen[2], the Court said:
“Any discussion of the role of the Crown prosecutor in presenting the Crown case must be begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.”
Later, the Court said that it was a misconception to speak of the prosecutor having a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The decision as to whether or not to call a witness involves the exercise of a discretion, in the sense of an exercise of a personal judgment, which must take account of the interests of the accused and the interests of a fair trial. The Court quoted with approval a passage from the Privy Council decision in Adel Muhammed el Dabbah v Attorney-General (Palestine):[3]
“The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive.”[4]
[2] (1974) 131 CLR 116 at 119.
[3] (1944) AC 156.
[4] ibid. at 168. See also R v Soma (2003) 212 CLR 299 at 309.
A similar view as to the obligation of the prosecution was expressed in Whitehorn v The Queen[5] by Deane J at 664 and by Dawson J at 674. In R v Apostilides[6], the High Court reviewed the position with respect to the failure of the prosecution to call relevant witnesses. It held that it is the prosecutor alone which bears the responsibility of deciding whether a person is to be called as a witness for the prosecution. A decision of the prosecutor not to call a particular person as a witness is not to be made lightly[7] but will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.[8] The High Court has held that:
“A decision whether or not to call a person whose name appears on the indictment and from whom the defence wishes to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most case where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.”[9]
[5] (1983) 152 CLR 657.
[6] (1984) 154 CLR 563.
[7]        R v O’Brien (1996) 66 SASR 396.
[8]        R v Apostilides at 575.
[9]        R v Apostilides at 576.
The cases show that a failure by the prosecution to call a witness has been held to result in a miscarriage of justice in relatively few situations. Such a miscarriage may result where there has been misconduct by the prosecution[10] or where the prosecution did not call the witness with a view to obtaining a tactical advantage[11] or for some other “oblique motive”[12] or where the effect of the failure of the prosecution to call the witnesses was to deny the defendant a fair trial.[13]
[10]       Richardson v The Queen at 122; Whitehorn v The Queen at 669 per Deane J.
[11]       Whitehorn v The Queen (1983) 152 CLR 657 at 664 per Deane J.
[12]       Adel Muhammed el Dabbah v Attorney-General (Palestine) [1944] AC 156 at 168.
[13]       R v Apostolides at 577.
One circumstance in which it has been held that a failure by the prosecution to call a witness has not resulted in a miscarriage of justice is that where the prosecution forms the view, reasonably, that the evidence of the witness is unreliable and not credible. Generally, courts have been concerned to ensure that such an assessment by the prosecutor is made on proper and reasonable grounds. In Richardson v The Queen, the Court accepted that in the exercise of the personal judgment as to whether or not to call a witness, a view that the witness is not credible and truthful will constitute a sufficient reason for not calling him or her.[14] In Whitehorn v The Queen Deane J identified as one consideration which may justify the Crown in refraining from leading evidence from a particular witness the view of the prosecution that the evidence which the witness would give is plainly untruthful or unreliable.[15] In the same case, Dawson J held:
“… a prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief.”[16]
[14] Richardson v The Queen at 121.
[15] (1983) 152 CLR 657 at 664.
[16] At 674.
Other cases indicate that a refusal to call a witness on the ground that he or she is unreliable should be kept within narrow bounds. In R v Shaw[17] Young CJ said that:
“The mere fact that a potential witness has made an inconsistent statements will not generally be a reason for not calling the witness but unreliability may be supported by other considerations as well.”
In R v Kneebone[18] Greg James J spoke of the need, in an appropriate case, for the prosecution to be able to justify the refusal to call the witness:
“Since both experience and logic assume that merely because a witness’ evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability … at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion.”
See also R v O’Brien[19]; R v Harry; Ex parte Eastway[20].
[17] (1991) 57 A Crim R 425 at 429.
[18] (1999) 47 NSWLR 450 at 461.
[19] (1996) 66 SASR 396 per Doyle CJ at 397-398.
[20] (1985) 39 SASR 203 per King CJ at 209-211.
The cases demonstrate that the failure of the prosecution to call a witness may make a conviction unsafe. It is another thing to say that such a failure constitutes the proceedings an abuse of process. The concepts of abuse of process and safety of a verdict are not synonymous. It would be an abuse (relevantly) for the charge to be prosecuted if the effect of the prosecution not calling the wife was to deny the appellant a fair trial with there being nothing the Court could do to overcome that unfairness.[21] Such a circumstance would constitute a fundamental defect going to the root of the trial.[22] Whilst the law of evidence and criminal procedure has been developed with a view to promoting the fairness of trials, it is not every “unfairness” which will constitute the proceedings an abuse of process.
[21] Williams v Spautz (1992) 174 CLR 509 at 519.
[22] Jago v District Court (NSW) (1986) 168 CLR 23 per Mason CJ at 34.
There are two considerations in particular which, in my opinion, indicate that the Magistrate was correct in rejecting the submission as to abuse of process. The first is that the prosecution had assessed the wife as being unreliable and as a person who was likely to give untruthful evidence. There is no suggestion that the prosecution had an “oblique” or improper motive, nor any suggestion that the prosecution decision was made for tactical reasons thus putting the appellant at a disadvantage. The prosecution reasons for not calling the wife were well based. On the appeal, I received, without objection, an affidavit from Ms Downey. That affidavit annexed two statements from the wife. The second signed statement gave a quite different account of the way in which the wife sustained the wound from the first. In effect, in the second statement the wife attributed the stabbing to her own conduct. That revision of accounts, and the manner of its expression, entitled the prosecution to form the view that the victim was an unreliable witness who would give false evidence out of a sense of loyalty to the appellant. It would be somewhat incongruous to hold that a fair trial could be had only if a witness who had been assessed, reasonably, as being likely to be untruthful was called to give evidence.
It was submitted that there was no evidence that counsel for the prosecution before the Magistrate had herself interviewed the wife as suggested by Greg James J in Kneebone. It is true that there is no direct evidence of such an interview but I note that the wife had been interviewed in the office of the DPP. It can be reasonably inferred that the prosecution assessment of her veracity was not made simply on the papers.

The second consideration is that the wife was not a witness who was unavailable to the appellant. The appellant and the wife are in a continuing relationship. This was not a case, such as Whitehorn, where the defence was entirely dependent on the prosecution to call a witness as it had no other means of access to her. The appellant could have called his wife in his own defence. It was submitted that he would thereby have lost the opportunity to cross-examine her, and that the prosecution could then have cross-examined her. If the prosecution decision had been made for tactical reasons with a view to achieving that result, the position may have been different, but that is not this case. Whether or not the Magistrate had a discretion as to the forms of examination and cross-examination which could be allowed, which could have been exercised to prevent any unfairness which arose was not a matter argued on this appeal.
It is not clear to me how the absence of the wife has deprived the appellant of the defences of accident and self-defence (as was submitted by the appellant). It is the prosecution which has the onus of negativing those defences.[23]
[23] In the case of self-defence, see s 15 of the Criminal Law Consolidation Act 1935.
In my opinion, Ground 1 is not made out. The Magistrate has not been shown to be in error in declining a stay on the grounds of abuse of process.
Ground 2: Finding of a Case to Answer
The appellant submitted that the Magistrate erred in finding, at the conclusion of the prosecution case, that there was a case to answer. The appellant submitted that the evidence was not capable of establishing the three elements of the offence of unlawful wounding, namely, an intentional act, the infliction of a wound as a direct result of that act, and either an intention on the part of the defendant to inflict that harm, or foresight of the likelihood that harm of that type would result from the act and a determination to proceed with the act notwithstanding.[24]
[24] R v Hoskin (1974) 9 SASR 531 at 535-536.
The Magistrate directed himself to the relevant authorities, citing the well-known passage from R v Bilick and Starke[25] in which King CJ identified the question to be asked in a case which is circumstantial or partly circumstantial as:
“On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?”[26]
[25] (1984) 36 SASR 321.
[26] At 337. See also Question of Law Reserved (No 2) (1993) 61 SASR 1 per King CJ at 4.
In finding that there was a case to answer the Magistrate said:
“In this case, the sequence of events and the combination of factors including direct evidence of the wounding; the independent observations of the injury to the victim; the location of the knife; and the remarks of the defendant on the telephone to the South Australian Ambulance Service, ‘Me and me missus just had an argument. I stabbed her, I’m sorry’, are sufficient to draw the inference that the defendant took up the knife during an argument, unfolded the blade and deliberately stabbed the victim to the chest.”
In addition to these matters could be added the response of the appellant “Unfortunately yes” to the question of the interviewing police officer, “So this knife’s sitting on the table in the lounge. You’ve stabbed her?” and the appellant’s description of the altercation between his wife and himself as “Just one big barney between two fucken drunks”.
In my opinion, the Magistrate was correct in finding that there was a case to answer. There was no doubt that the wife sustained a wound. There was evidence that this wound had been caused by the appellant stabbing her with a knife, which had to be unfolded before it could be used. Given the evidence of an altercation, it was open to the trier of fact to conclude, beyond all reasonable doubt, that the appellant had unfolded the blade of the knife and had deliberately stabbed the victim.
Accordingly, Ground 2 is not made out.
Ground 4: Absence of Final Addresses
Having dismissed the two applications of the appellant, the Magistrate then proceeded immediately to consider the evidence and came to the conclusion that the prosecution had established the commission of the offence by the appellant beyond all reasonable doubt.
The Magistrate did not give the appellant an opportunity to open his case, or to indicate that he intended to call no evidence. Perhaps this was because of the prior intimation that the appellant did not intend to give evidence. Furthermore, the Magistrate did not hear submissions from either counsel as to whether the evidence, which he had determined was capable of leading to a finding that the offence had been established beyond all reasonable doubt, did in fact have that effect.
In this respect, the Magistrate was in error. Two considerations indicate that error. The first is that there was a non-compliance with the requirements of the Summary Procedure Act 1921. Section 68(3) of that Act provides:
“The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the Court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.”
Section 69 of the Summary Procedure Act provides:
“When the parties and their evidence have been heard, the Court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the Court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.”
The practice of the Supreme Court concerning final addresses in a criminal trial is governed by s 288B of the Criminal Law Consolidation Act 1935. It provides:
“(1) At the conclusion of the evidence, the prosecutor and the defendant are entitled to address the Court on the evidence.
(2)The address for the prosecution must be made before any address for the defence.”
Accordingly, each of the prosecutor and the defendant was entitled by statute to make final submissions before the Magistrate made his finding as to the guilt of the appellant.
The second consideration indicating error by the Magistrate is that a failure to provide the parties with an opportunity to make oral submissions constitutes, in circumstances such as these, a denial of natural justice.[27] In the circumstances of this case it could not be said that the absence of opportunity to make final submissions has had no practical effect. At the very least, submissions could have been made on the topic of the appellant’s state of mind, and whether self-defence had been negatived.
[27] Stead v SGIC (1986) 161 CLR 141; Allen v Gittos (1995) 13 WAR 560.
The Magistrate heard the oral submissions on the appellant’s applications on 27 May 2004. The prosecution was given leave to provide written submissions in response, which was done on 9 June 2004. The Magistrate reserved his decision. He delivered judgment on 29 July 2004.
Immediately after the Magistrate delivered his decision the appellant’s then counsel drew the Magistrate’s attention to the fact that he had not been given the opportunity of making final submissions following the rejection of the submission of no case to answer. The Magistrate indicated that he had been proceeding on the understanding that final submissions on the case as a whole had been made.
In that respect the Magistrate was mistaken. I have reviewed the transcript of the submissions and the written submissions provided by the prosecution. It is apparent that each counsel was addressing the two applications then being made by the defendant and neither had made submissions with respect to the evidence as a whole. As noted above, the appellant’s then counsel stated expressly, “I am not making submissions in relation to the trial itself”.
I therefore uphold Ground 4. Having upheld this ground, it is appropriate that I set aside the Magistrate’s verdict. The matter will be remitted to the Magistrate’s Court for a retrial before another Magistrate. In those circumstances it is unnecessary, and inappropriate, for me to express any view about the remaining grounds.
Conclusion
For the reasons outlined above, I find that Grounds 1 and 2 of the Notice of Appeal are not made out. I am satisfied, however, that the Magistrate did err in proceeding to a verdict after he rejected the submission of no case to answer without giving either the prosecution or the defence an opportunity to make final submissions with respect to the evidence.

The orders of the Court are:
1. The appeal is allowed.
2. The verdict of the Magistrate delivered on 9 July 2004 is set aside.
3.I remit the matter for retrial in the Magistrate’s Court before another Magistrate.
I will hear the parties as to any further orders.