Fazzari v The State of Western Australia
[2006] WASC 271
FAZZARI -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 271 | |
| Case No: | CACR:95/2006 | 23 NOVEMBER 2006 | |
| Coram: | MARTIN CJ | 23/11/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SALVATORE FAZZARI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeals Application for orders seeking a compellable witness to give evidence so that an application can be made to admit that evidence can be made to the Court of Appeal at the final hearing Prior to application for leave has been granted Distinction between "new" and "fresh" evidence |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(c), s 40(1)(c)(i), s 40(1)(c)(ii), s 40(2)(b) Evidence Act 1906 (WA), s 21 |
Case References: | CDJ v VAJ (1998) 197 CLR 172 De La Espriella-Velasco v The Queen (2006) 31 WAR 291 Lawless v The Queen (1979) 142 CLR 659 Lawless v Turner [2005] WASC 254 Ratten v The Queen (1974) 131 CLR 510 Urbano v The State of Western Australia [2006] WASCA 147 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Appeals - Application for orders seeking a compellable witness to give evidence so that an application can be made to admit that evidence can be made to the Court of Appeal at the final hearing - Prior to application for leave has been granted - Distinction between "new" and "fresh" evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(c), s 40(1)(c)(i), s 40(1)(c)(ii), s 40(2)(b)
Evidence Act 1906 (WA), s 21
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M J McCusker QC and Mr J A Davies
Respondent : Mr B Fiannaca SC and Mr S F Rafferty
Solicitors:
Applicant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
CDJ v VAJ (1998) 197 CLR 172
De La Espriella-Velasco v The Queen (2006) 31 WAR 291
Lawless v The Queen (1979) 142 CLR 659
Lawless v Turner [2005] WASC 254
Ratten v The Queen (1974) 131 CLR 510
Urbano v The State of Western Australia [2006] WASCA 147
Case(s) also cited:
Nil
(Page 3)
1 MARTIN CJ: The applicant Salvatore Fazzari moves the Court for the following orders: firstly, an interim order pursuant to s 40(1)(c)(i) of the Criminal Appeals Act 2004 (WA) ("the Act") that Alberto Magistro, being a witness who would have been compellable at the trial in the lower court attend and be examined in accordance with the rules of court or the directions of the Appeal Court before a person appointed by it under s 40(2)(b) on a date to be set; secondly, an order pursuant to s 40(1)(c)(ii) of the Act that the evidence of Alberto Magistro be recorded and be admitted as evidence in his appeal.
2 However, before me, counsel for Mr Fazzari does not press for an order today that the evidence be admitted as evidence on the appeal. They are simply seeking that the evidence be taken in order that an application can be made to the Court of Appeal at the final hearing.
3 The application is brought before leave to appeal has been granted and although that is somewhat unusual, in this case, I do not regard that as an impediment to the success of the application. It seems to me to be clear that the substantive ground of appeal to which the evidence could go, and indeed would have to go, is clear enough and that is the ground referred to in s 30(3)(c) of the Act; namely, that there was a miscarriage of justice.
4 Although the ground that is currently relied upon is somewhat differently enunciated, in substance, I think, it must come down to the same thing. The significance of the evidence that would be adduced, if given, is also relatively clear on the materials before me.
5 The application is made pursuant to s 40(1)(c) of the Act which provides that for the purposes of dealing with an appeal, an appeal court may do any or all of the following:
"[I]f a person was a compellable witness, or would have been a compellable witness if called, at the trial in the lower court -
(i) order the person to attend and be examined in accordance with rules of court or the directions of the appeal court before a person appointed by it under subsection (2); and
(ii) order the evidence of the person to be recorded and the recording to be admitted as evidence in the court."
(Page 4)
6 The circumstances in which the application is made are set out in affidavits which have been filed by Mr Bowden; Mr Davies; Mr Fazzari, the applicant; and Mr Pereiras, who was a co-accused and is now a co-applicant.
7 I will deal firstly, with Mr Bowden's affidavit. Mr Bowden tells the Court in par 3 that he acted as solicitor and sole counsel for the Mr Fazzari at his first trial for the wilful murder of the deceased when he was tried with Mr Martinez, Mr Pereiras and Alberto Magistro. That trial took place between 18 April 2005 and 28 May 2005.
8 In the first trial, Mr Magistro was acquitted at the end of the prosecution case by direction of the trial Judge. As the jury was unable to agree upon a verdict in respect of the Mr Fazzari and the other two co-accused, a retrial was ordered.
9 Mr Bowden goes on to depose in par 5 that before the first trial he had seen the following material: annexure MB1, which is a handwritten statement signed by Mr Magistro dated 3 March 1998; annexure MB2, being a transcript of the police video record of interview of Mr Magistro held on 1 April 1998; annexure MB3, which is a copy of a signed police statement made by Mr Magistro dated 21 April 1998; annexure MB4, being a copy of the transcript of a video record of interview of Mr Magistro held on 2 September 1998; and the fifth annexure, MB5, which is a copy of the transcript of the evidence of Mr Magistro given before the Coroner on 24 January 2003 during the inquest into the death of Mr Walsham.
10 I have reviewed those statements and transcripts and I think it is clear that each of them deal in differing degrees of detail and in slightly different words with Mr Magistro's movements on the night in question and particularly, his movements after the assault on the deceased which preceded his fatal fall.
11 All of those statements were exculpatory of Mr Fazzari and the two other co-accused and in particular, in each and every one of those statements Mr Magistro suggested that the group, which included him, did not return to the scene after the first assault on Mr Walsham had occurred.
12 I think it is also significant that I note that four of those statements were made in 1998 when it can readily be supposed that the events would have been fresh in Mr Magistro's mind. The fifth statement was made in January 2003 and on oath and that was a little over three years before the second trial of the current applicant.
(Page 5)
13 Mr Bowden goes on to depose in par 6 to Mr McCusker's acceptance of a brief to act as senior counsel for the applicant and to advise the Court that in conference, Mr McCusker suggested to Mr Bowden and to Mr Fazzari that Mr Magistro should be called as a witness in the defence of Mr Fazzari at the retrial.
14 Mr Bowden summarises the statements and interviews that have been given by Mr Magistro in par 7 of his affidavit in these terms when he says:
"In his statements and interviews, Magistro had accounted for the movements of himself, the appellant, and the other co-accused on the night of the death of the deceased, to the effect that neither he, the appellant, nor the other two-accused had gone back to the Stirling Railway Station after the initial incident, when the appellant had kicked Walsham and they had left."
15 In par 8 Mr Bowden goes on to say:
"Although Magistro's evidence and statements were generally exculpatory, he had been equivocal in some respects …"
- and he identifies those respects in par 8. As a result of that equivocation, Mr Bowden deposes in par 9 that it was considered important to obtain an unequivocal signed statement from Mr Magistro before he was called as a witness for the defence, clearly stating that the car in which he and the three accused were travelling did not return to Stirling Station that evening after the initial incident.
16 In par 10 Mr Bowden deposes that Mr Magistro had been separately represented by Mr Paul O'Brien, a barrister and solicitor. In par 11 Mr Bowden tells us that on 14 April 2006 he telephoned Mr O'Brien and explained to him the defence was considering calling Mr Magistro as a witness, but he needed to speak to him in order to take a statement from him. Mr O'Brien replied that his client could say nothing helpful to the case of Mr Fazzari and that Mr Magistro was very reluctant to be involved in the retrial, "He said that he doubted that Magistro would speak with me".
17 I pause to observe that from the evidence that is before me, it does not seem that that doubt was ever taken to its final conclusion and in particular, it does not seem that there was any further conversation with Mr O'Brien in which he was pressed to ascertain what instructions he had
(Page 6)
- in fact received from Mr Magistro about the extent to which he was prepared to co-operate with those advising Mr Fazzari.
18 In par 12 Mr Bowden deposes to the fact that he informed Mr McCusker of his conversation with Mr O'Brien and that he; that is, Mr Bowden, had formed the view based on the conversation that Mr Magistro would not be prepared to give evidence or be able to assist the applicant's defence. Mr Bowden also said that Mr McCusker agreed that it would be unwise to call Mr Magistro without being sure that he would be able to clearly remember and confirm the events of that evening, and in particular whether those in the car returned to Stirling Station after the initial incident.
19 Mr Bowden deposes to informing the Mr Fazzari of his discussion with Mr O'Brien and told the applicant that, in his opinion, it would be unwise to call Mr Magistro as a defence witness without first obtaining a clear and unequivocal signed statement to the effect that Mr Magistro had been in the company of the applicant and the two other accused the entire evening and that they had not returned to the Stirling Station.
20 Mr Bowden told Mr Fazzari that whilst he had no doubt that that was the case, any apparent uncertainty or doubt on Mr Magistro's part when giving evidence; for example, if he said he did not remember, could create a very bad impression and be adverse to the defence.
21 Mr Bowden goes on to depose to causing a witness summons to issue from the Supreme Court which was given to Mr Fazzari's family to serve on Mr Magistro. However, apparently before that summons was served Mr Bowden received instructions from Mr Fazzari not to call Mr Magistro as a defence witness at the retrial. Mr Bowden was told by Mr Fazzari that Mr Magistro had said that he had difficulty recollecting the events of the evening in question, would not be a helpful witness and did not wish to give evidence at the retrial.
22 Mr Bowden was also told by Mr Fazzari that for that reason, the witness summons had not been served. Mr Bowden informed Mr McCusker of that and it was decided that in view of the information to the effect that Mr Magistro was unable to clearly recall the events of the evening in question and the fact that Mr Bowden was unable to interview him to obtain a signed statement, it would be unwise to call him as a witness.
23 I digress to observe that that position was adopted, notwithstanding that there had been neither an attempt to serve the summons nor
(Page 7)
- apparently any attempt to revert to Mr O'Brien to ascertain whether he had in fact taken instructions as to Mr Magistro's willingness to co-operate with those advising Mr Fazzari.
24 Mr Bowden goes on in par 14 to refer again to the view that he formed that if Mr Magistro were to say that he could not remember the events of the evening or be at all equivocal, it would not only be unhelpful, but positively detrimental to the defence and so, as a result, Mr Magistro was not called to give evidence.
25 On or about Wednesday, 10 May 2006 following the conviction of Mr Fazzari, Mr Bowden tells us that Mr Magistro gave a tape-recorded interview to a journalist, Estelle Blackburn, who then published a newspaper article based on that evidence in The Sunday Times newspaper published on 13 May 2006. Mr Bowden observes that in that interview Mr Magistro was clear and emphatic that after the first incident at the Stirling Station he had remained with the three accused, but they had not returned to the Stirling Station that evening and therefore could not have been responsible for Mr Walsham's death.
26 The transcript of the interview between Mr Magistro and Ms Blackburn is before me elsewhere in evidence. I have reviewed it, it seems clear and I do not think it is contentious that the substance of what Mr Magistro said to Ms Blackburn, is essentially the same as he had said on five previous occasions, including the evidence he gave on oath to the coroner in 2003. The differences, if any, are differences of emphasis.
27 Mr Bowden also deposes to the fact that the question of whether the applicant and his co-accused returned to the Stirling Station was the central issue at the trial.
28 Mr Davies has sworn an affidavit in support of Mr Fazzari's application in which he deposes to the fact that he is a barrister appearing as junior counsel on the appeal. He deposes in par 5 of his affidavit to having received a copy of the transcript of the interview between Mr Magistro and Ms Blackburn. He advises that under instructions from senior counsel, he endeavoured to contact Mr Magistro in order to obtain an affidavit of his recollection of relevant events as disclosed during the interview.
29 As Mr Davies observes, the substance of the interview; that is to say, the Blackburn interview, was that on the night of the death of Mr Walsham, the applicant and those he was with, including Mr Magistro,
(Page 8)
- did not return to the Stirling Station as alleged in the prosecution case and therefore could not have been responsible for the death of the deceased.
30 Again, I digress to observe that that was the substance of all the prior statements made by Mr Magistro, including the evidence he gave on oath before the coroner.
31 Mr Davies goes on to depose that following a telephone request, Mr Magistro attended at his chambers with his brother Leon, an articled law clerk, on the afternoon of Thursday, 14 September 2006. During that meeting, Mr Davies showed Mr Magistro a draft affidavit which he had prepared that day for discussion.
32 In par 8, Mr Davies deposes to the fact that during discussion with Mr Magistro, he confirmed the following facts to him:
"(a) He told me that he was certain the appellant and those with him had not returned to the Stirling Train station on the night of the death of the Deceased and could not have been responsible for the death of the Deceased;
(b) His evidence before the Coroner was truthful;
(c) What he had said in his interview with Estelle Blackburn was truthful;
(d) He was uncertain as to whether the appellant and the group had attended at McDonalds Restaurant in Tuart Hill before or after the incident at the Stirling Station when the appellant had kicked the deceased."
33 I digress again to observe that the statements apparently made by Mr Magistro to Mr Davies do not differ in substance from anything Mr Magistro had previously said. Mr Davies goes on to say at the conclusion of his meeting, he gave Mr Magistro the draft affidavit and requested that he review it in his own time. Mr Magistro agreed and said that he would see Mr Davies again to finalise it.
34 In par 10 Mr Davies says that he did not speak with Mr Magistro again until he telephoned him at 3.30 pm on 27 September 2006. Mr Davies tells the Court that in the course of that telephone conversation, he asked Mr Magistro whether he would see him to finalise the affidavit and Mr Magistro said to him, "I do not want to do an affidavit".
(Page 9)
35 Mr Davies goes on to say that Mr Magistro said he gave no reason and did not say that the draft affidavit was in any way incorrect. He has since made several telephone calls to Mr Magistro, but they have gone unanswered.
36 I digress to observe that that apparent lack of response is why the order is now sought under s 40(1)(c) compelling Mr Magistro to attend before an officer of the Court and give evidence.
37 In addition, an affidavit has been filed on behalf of Mr Fazzari. He deposes to attending a birthday party at the house where he lived on 1 February 2006 . He says that on that occasion he spoke to his cousin Mr Magistro about the possibility of him giving evidence for the defence at the retrial which was to start in March.
38 Mr Fazzari says that he was very careful not to discuss any of his evidence, or the evidence that Mr Magistro might give, or the facts of the case at all, so that no suggestion could later be made that he had attempted to influence him in any way.
39 Mr Fazzari goes on to depose that during the course of his conversation with Mr Magistro, he said to him words to the following effect, "I do not have much memory of what occurred that night, as it was seven years ago".
40 Mr Fazzari deposes that as a result of that statement he formed the belief that Mr Magistro could not remember the events in question or else was reluctant to assist the defence and that if he was called as a witness he might harm the defence by saying that he could not remember which might cause a jury to think that he was hiding something.
41 In par 7 Mr Fazzari deposes that he saw Mr Magistro again at his home at the end of April 2006, on the occasion of his own birthday party; that is to say, Mr Fazzari's birthday party. Mr Fazzari then told Mr Magistro that he might be called to give evidence for the defence at his forthcoming trial. Mr Magistro responded that it would be a waste of time as he could not remember all that time ago. As a result, Mr Fazzari tells the Court he instructed his legal advisers not to call Mr Magistro as a witness believing that he could not or would not assist.
42 Reliance is also placed on an affidavit of Carlos Pereiras, who is another applicant and former co-accused. He deposes to having attended the party in Stirling in early February 2006 with other members of his
(Page 10)
- family. He says that he was present during a conversation between Sam, being a reference to Mr Fazzari, and Alberto Magistro at that party.
43 Mr Pereiras says they were standing at the back of the house and although he did not remember the exact time, it was after sunset. He could not remember whether others had been drinking. He does not think that he was drinking. He deposes that Sam (Mr Fazzari) asked Albert (Mr Magistro) if he was likely to give evidence at the trial and Mr Magistro responded saying that he did not remember anything of that night and there was no point in calling him as a witness. Mr Pereiras expresses the view, "It appeared to me that he didn't want to be involved in the matter" and the conversation moved on. Mr Pereiras deposes that he had not had any other conversation with Albert since that time about giving evidence or any other subject.
44 Again, I digress to observe that, it seems to me, that those conversations in social settings, hardly provide a sound forensic basis for the decision not to call Mr Magistro in the light of the five earlier statements he had made: four relatively contemporaneous with the events; and the fifth on oath several years later and some years prior to the trial.
45 There was of course the distinct possibility that any of those statements could have provided the basis for the tender of a prior inconsistent statement of Mr Magistro had he given evidence to the contrary of the statements he had made. That course could have been followed pursuant to s 21 of the Evidence Act 1906 (WA), but at all events, on the basis of the communications and discussions that are set out in the affidavits, the decision was taken not to possibly proceed that way, had that situation arisen.
46 The powers conferred by s 40 of the Act are not conditioned on whether the evidence is new or fresh, although as I will explain, that distinction remains of some significance. The distinction between "fresh" and "new" evidence is succinctly summarised by McLure JA in her decision in the case of Urbano v The State of Western Australia [2006] WASCA 147. In that case she observed at [9]:
"Fresh evidence is evidence which either did not exist at the time of the proceedings or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the proceedings or which could with reasonable diligence, then have been discovered …"
(Page 11)
47 It seems quite clear, and I do not think it is in contention, that the evidence which is sought to be adduced is new evidence, rather than fresh evidence. The principles relating to the reception of new and fresh evidence have been recently and conveniently summarised by Pullin JA in his decision in De La Espriella-Velasco v The Queen (2006) 31 WAR 291. At page 330 of his decision in that case Pullin JA referred to the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172. At [150] of his judgment and page 330 of the report Pullin JA conveniently summarised the main points emerging from that important decision of the High Court in these terms:
"(a) The discretion to receive further evidence is unconfined by anything within s 40 and so the discretion is confined only by the subject-matter of the legislation and by the requirement that it be exercised judicially and consistent with the judicial process;
(b) In particular the discretion to admit further evidence is not restricted by the need to show "special grounds" or the procedural requirement of "special leave". The almost fixed rules at common law which govern the admission of further evidence on an appeal do not apply;
(c) The power to admit further evidence exists to serve the demands of justice;
(d) It is however, highly unlikely that Parliament, in conferring jurisdiction on the Court of Appeal to hear appeals, intended that s 40 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellant jurisdictions;
(e) The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial;
(f) Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Court of Appeal is satisfied that the further evidence would have produced a different result if it had been available at the trial." (citations omitted)
48 Pullin JA went on to observe at [151]:
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- "All that is set out above governs the decision to admit the further evidence. In short, if at the stage of deciding to admit further evidence the Court will not refuse to hear further evidence merely because it is 'new' evidence rather than 'fresh' evidence, although the distinction is relevant."
49 His Honour went on at [152] to point out the significance of that distinction in these terms when he observed:
"The distinction between 'fresh' and 'new' evidence continues to be of importance. The distinction is important because 'new' evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively 'constructively' known to be available at the time of the original trial. An accused will 'constructively' know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, 'great latitude' must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between 'fresh' and 'new' evidence is not as significant as it once was. The distinction does, however, remain and is soundly based in principle. There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way." (citations omitted)
50 I note that this is one of those cases in which there does not appear to have been any disadvantage to Mr Fazzari in terms of intellectual resources or legal advice, nor is it a case in which there is a question of constructive knowledge of the evidence that would be available. The evidence that could have been given by Mr Magistro was, as I have observed, the subject of five earlier statements known to Mr Fazzari and his advisors. Pullin JA went on to observe:
"The reason for continuing to distinguish between new and fresh evidence is not to re-establish a set of rules bordering on fixed rules but merely to recognise that in many cases the court is likely to exercise its discretion and refuse to admit further
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- evidence in circumstances where the convicted person chose not to lead the evidence at trial or did not lead evidence which was available on reasonable inquiry.
The fact that a tactical decision was made not to lead evidence, or the fact that there was a failure to make reasonable inquiry, will be facts relevant to the court's decision about whether the conviction should be quashed and a retrial ordered. A decision made for tactical reasons is a decision which an accused person must live with. There will be no miscarriage of justice."
51 Barwick CJ said in Ratten v The Queen (1974) 131 CLR 510, a criminal trial is not an inquisition, it is a trial:
"It is a trial in which the protagonist is the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue and evidence which it or he will call and what questions, whether in chief or in cross-examination, shall be asked. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or on the proper conduct of the proceedings, or by misconduct on the part of the jury there has been a fair trial.
It will not become an unfair trial because the accused, of his own volition, has not called evidence which was available to him at the time of his trial or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial."
52 Returning to De La Espriella-Velasco (supra), Pullin JA went on to observe at [157]:
"The interests of justice are served by finality in litigation. The interests of justice will not usually be served by allowing an appellant to adduce evidence on an appeal if the appellant made a tactical decision at trial not to call the evidence, or if the appellant suffered Nelsonian blindness and for that reason did not call that evidence at trial. Having said that, the overriding consideration however, must be whether or not the further evidence demonstrates that there has been a miscarriage of justice. If the evidence is 'fresh evidence', then the court only has to reach a conclusion that there would have been an
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- increased chance of acquittal in order to decide that there was a miscarriage of justice. It must be shown that the jury would have been 'likely' to have entertained a reasonable doubt; or 'might' have; or there was a 'significant possibility' of that being so." (citations omitted)
53 His Honour goes on to say at [158]:
"However, if the evidence is 'new' evidence, then it is not enough merely to show an increased chance of acquittal. The 'new' evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the Court concludes that the 'accused should not have been convicted'." (citations omitted)
54 To those authorities I would simply add one more reference and that is to the decision of Le Miere J in Lawless v Turner[2005] WASC 254 where his Honour observed at [69]:
"… In a criminal trial the accused is entitled to decide how his case is to be conducted, in particular what evidence he will call. He makes his decision in light of the knowledge that he is tried but once unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented."
55 The authority upon which Le Miere J relies for that proposition is the decision of the High Court in Lawless v The Queen(1979) 142 CLR 659 per Mason J at 675 - 676.
56 In this case, the evidence that is sought to be adduced was well known to Mr Fazzari and his legal advisers. As I have already observed, it had been the subject of five previous statements made by Mr Magistro, one of them on oath. Notwithstanding those statements, because of some equivocality in them, and I think there is a reasonable inference to the effect that there was some concern as to how Mr Magistro might fair both in chief and in cross-examination, the tactical forensic decision was taken by both Mr Fazzari and his legal advisers not to call Mr Magistro at trial.
57 Mr Fazzari now seeks to be relieved from the consequences of that tactical forensic decision because, in a subsequent interview with a
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- journalist and with junior counsel, Mr Magistro has said that he can recall the events and has been, it is said, somewhat more emphatic and somewhat less equivocal than he was in the statements he made between 1998 and 2003. However, as I have observed, the substance of those statements is precisely the same as his previous five statements.
58 The application is no doubt made in the hope that if compelled to attend and give evidence on oath, Mr Magistro would be more emphatic and unequivocal. Of course, it remains a matter of speculation as to whether or not he would. That was not a speculative risk Mr Fazzari was prepared to take before the jury.
59 The course that is now sought to be taken would seek to avert that risk; the previous forensic strategy adopted, not having resulted in an acquittal; and would put the Court of Appeal in the position of having to evaluate how the jury may consider the evidence which the applicant was well aware may well be available, but quite deliberately chose not to put before it.
60 In these circumstances, I am of the view that the most pertinent consideration weighing upon the exercise of the discretion conferred by s 40 of the Actis that it is in the public interest that criminal trials be conducted fully before juries and not partly before a jury and partly before the Court of Appeal.
61 In my opinion, this Court should not be seen to sanction any approach to the conduct of criminal litigation which would encourage accused persons not to lead all relevant evidence before the jury on the basis that if that forensic strategy does not work as hoped, a different strategy can be adopted before the Court of Appeal.
62 I also observe that the evidence which is sought to be taken under s 40 appears to fall into two categories. There is firstly, the evidence of the substantive events at the time of the death of the deceased. In relation to that category of evidence, there are five previous statements made by Mr Magistro therefore what he is likely to say on that topic can be made known to the Court of Appeal.
63 The second category of evidence, which I hear from counsel for Mr Fazzari, is sought to adduce is the reasons for his apparent diffidence in giving evidence at the trial. It seems to me, the evidence in that category would not be relevant to any issue on the appeal. On the appeal, the question would be whether there has been a miscarriage of justice.
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64 The question of whether the substantive evidence to be given by Mr Magistro, as to the events on the night of the death of Mr Walsham, is to be admitted will be informed by the circumstances that led to the decision not to call Mr Magistro at the trial. Those circumstances will be assessed by reference to communications that took place between Mr Magistro and those representing him and each of the applicants and their advisers.
65 The reasons that might have motivated Mr Magistro to say what he said seem to me to be entirely irrelevant to those issues and it would not be proper, in my view, to exercise my discretion to order evidence which I presently consider to be irrelevant to be gathered.
66 For these reasons, I refuse the application, but the Court of Appeal will, of course, be constituted by three Judges who may take a different view to that which I have taken and there will be no impediment to the renewal of the application upon the substantive hearing of the appeal. Indeed, if the Court hearing the appeal takes the view that it would be desirable for Mr Magistro to give evidence, there is, I think, something to be said for the proposition that it would be preferable for him to give that evidence to the three Judges who comprise the Court of Appeal, rather than to either one only of those Judges or some functionary, leaving the Court of Appeal to work only on his transcript.
67 For those various reasons I make the following order:
1. The applicant's application, filed 10 November 2006, be dismissed, but without prejudice to the applicant's capacity to renew the application on the substantive hearing of appeal.
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