Luna (a Pseudonym) v The Queen
[2016] VSCA 10
•19 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0241
| JOHNNY LUNA (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | 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 applicant.
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| JUDGES: | REDLICH, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 February 2016 |
| DATE OF JUDGMENT: | 19 February 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 10 |
| JUDGMENT APPEALED FROM: | DPP v [Luna] (Unreported, County Court of Victoria, Judge Tinney, 27 November 2015) |
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CRIMINAL LAW – Interlocutory Appeal – Hearsay – Trial of sexual offences – Complainant deceased – Whether complainant’s evidence in committal proceedings admissible – Evidence of complainant’s psychiatric condition became known after committal – Whether probative value of evidence is outweighed by danger of unfair prejudice – Whether common law unfairness discretion applies – Evidence Act 2008, ss 65 and 137 – Haddara v The Queen (2014) 43 VR 53.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T E Wraight QC with Ms K Argiropoulos | Lethbridges |
| For the Crown | Mr D A Trapnell QC with Ms C J C Parkes | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH
PRIEST
BEACH JJA:
Introduction
In a pending trial for serious sexual offences, the trial judge refused to exclude the committal evidence of an unavailable witness.
Pursuant to the trial judge’s certification,[2] the applicant sought to challenge the trial judge’s refusal in this Court, submitting that the evidence should have been excluded pursuant to s 137 of the Evidence Act 2008 (‘the Act’) or the residual common law unfairness discretion recognised in Haddara.[3]
[2]Criminal Procedure Act 2009, s 295(3)(b).
[3]Haddara v The Queen (2014) 43 VR 53 (‘Haddara’).
For the reasons that follow, in our opinion the applicant’s challenge must fail.
Background
It is necessary to say something about the background to the application in this Court.
An indictment filed in the County Court charges the applicant with the indecent assault[4] (two charges — charges 1 and 2) and rape[5] (two charges — charges 3 and 4) of ‘LE’.
[4]Crimes Act 1958, s 39(1).
[5]Crimes Act 1958, s 38(1).
The events leading to the first charge are alleged to have occurred between 1 and 18 January 2013, and those founding the remaining charges are said to have occurred on 1 February 2013. On 7 August 2013 the applicant was charged. At committal proceedings on 22 November 2013, LE and two other witnesses gave evidence and were cross-examined. Having heard the evidence, the examining magistrate committed the applicant for trial.
Initially, the applicant’s trial was listed to commence in the County Court on Monday, 17 November 2014. Less than a week before the listed trial date, on Tuesday, 11 November 2014, the prosecution solicitor notified the defence that LE was unwell. At a mention on Friday, 14 November 2014, due to LE’s ill-health, the trial was adjourned to 23 November 2015.
LE died on 9 January 2015.
On Monday, 23 November 2015, the applicant was arraigned before the trial judge and pleaded not guilty. By his Defence Response filed on 13 October 2014, the applicant denies that the events founding charges 1, 2 and 3 took place. With respect to charge 4 — a charge of penile-oral rape — the applicant admits that oral sex took place, but asserts that it was consensual.
Some months after the filing of the Defence Response, on about 18 August 2015, the prosecution filed a Hearsay Notice, seeking to rely at trial on LE’s police statements and other committal evidence,[6] and upon certain representations made by LE to others following the alleged offences. An Amended Hearsay Notice and a Further Amended Hearsay Notice followed on 19 and 20 November 2015 respectively.
[6]Generally speaking, the statement of a witness in committal proceedings stands as the evidence in chief of the witness: Criminal Procedure Act 2009, s 130(3). See also s 112.
On 27 November 2015, the trial judge ruled that LE’s statements and committal evidence were admissible pursuant to s 65(3) of the Evidence Act 2008 (‘the Act’). He refused to exclude the evidence under s 137 of the Act, or pursuant to the Haddara discretion (so called). It is that ‘interlocutory decision’[7] which is the subject of the present application.[8] That same day, the judge certified pursuant to s 295(3) of the Criminal Procedure Act 2009 that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
[7]See the definition of interlocutory decision in s 3 of the Criminal Procedure Act 2009.
[8]With respect to other representations made by LE following the alleged offences, the trial judge ruled some to be admissible, and reserved ruling with respect to others. These aspects of his Honour’s ruling are not, however, the subject of any application in this Court.
By a Notice dated 7 December 2015, the applicant sought leave to appeal against the ruling of 27 November 2015, relying on two grounds. Subsequently, however, the applicant abandoned a ground that the trial judge ‘erred in ruling that the hearsay evidence (namely the deceased complainant’s committal hearing evidence dated 22 November 2013 and her two statements dated 2 February 2013 and 18 February 2013) should be admitted pursuant to s 65(3) of the Evidence Act 2008’; and limited the attack on the judge’s ruling to a ground contending that the trial judge ‘erred in failing to exclude the hearsay evidence in accordance with s 137 of the Evidence Act 2008 or the common law discretion to exclude evidence the admission of which would be unfair to the accused’.
Overview of the evidence
In a statement made to police on 2 February 2013, LE said that she was aged 30 years. Abbreviating her account somewhat, LE said that in January she moved into a rooming house that had four bedrooms, one of which she occupied. The applicant was described as the ‘landlord’. LE said that ‘one time around the middle of January’ the applicant touched her left breast on the outside of her clothes (charge 1). (She subsequently complained to a general practitioner about this event.) Later, at about 1.30pm on 1 February 2013, the applicant came to the rooming house to collect rent. At some point during the applicant’s attendance at the premises, LE and the applicant went into her bedroom. LE asked the applicant if she could get a puppy, and the applicant then pulled her down onto the bed. The applicant ‘cuddled’ her, and put his hand on her breast under her bra (charge 2). LE stood up, but the applicant pulled her back down, put his hand down her pyjama pants and touched her pubic bone. The applicant then made her stand up, pulled her pyjama bottoms off and looked at and ‘patted’ her vagina. After this, he made LE lie down and he put his finger into her vagina (charge 3) while making her touch his penis outside his clothing. The applicant then took down his pants and forced LE to suck his penis (charge 4) until he ejaculated into her mouth. LE then spat the ejaculate into a piece of toilet paper. During these events LE said ‘no’ many times.
After the applicant left the house, LE complained to a friend, ‘AD’, and then to the applicant’s employer. Following these complaints, LE reported the matter to police. The piece of toilet paper was given to police, and later tested positive for the presence of saliva and semen. DNA analysis gave ‘extremely strong support’ for the proposition that DNA in a sperm fraction located originated from the applicant.
LE’s second statement to police was made on 18 February 2013. It was brief, and dealt with the reasons why LE had toilet paper in her room. LE also said that there was no rubbish bin in the toilet of the house.
When interviewed by police on 3 February 2013, the applicant denied indecently assaulting or raping LE. He told police that whilst at the house on 1 February 2013, he had masturbated in the toilet to the point of ejaculation. He wiped himself with toilet paper and flushed it, following which he wiped himself again and discarded the toilet paper in a rubbish bin in the toilet. Despite what he told the police, however, by his defence response the applicant now admits that oral sex — relevant to charge 4 — occurred.
As we have mentioned, LE died on 9 January 2015. It was not until 5 October 2015, however, that the prosecution provided the applicant’s solicitors with a copy of LE’s death certificate. Significantly, the death certificate listed the complainant’s previous illnesses as including ‘borderline personality disorder’ and ‘schizoaffective disorder’. That revelation prompted the applicant’s solicitors to make application under s 32C of the Evidence (Miscellaneous Provisions) Act 1958, seeking to compel production of some of LE’s medical records.
The impugned ruling
The applicant’s counsel submitted to the trial judge that LE’s statements and committal evidence were not admissible under s 65 of the Act; and, alternatively, that they fell to be excluded under s 137 of the Act or pursuant to the common law unfairness discretion. None of these submissions found favour with the judge.
In a detailed ruling, having found that the preconditions to admissibility of LE’s committal evidence were satisfied — a finding which it is now not sought to challenge — the judge turned to consider the issue of exclusion under s 137 of the Act and pursuant to the common law unfairness discretion.
The judge proceeded on the basis that, although he must assume the truthfulness of LE’s evidence, its reliability was something that he needed to ‘factor in’ when assessing its probative value and the danger of unfair prejudice. He concluded ‘that the evidence is of very strong probative value’. His Honour remarked that the Act ‘contemplates the very possibility of a jury not being able to see and/or hear the complainant’, and that deficiencies in cross-examination at a committal hearing ‘cannot be determinative of whether a fair trial can be conducted’, since ‘the fairness of a trial is not a function of the forensic choices that have been made at a committal hearing’.
Various factors relied upon to invoke s 137 of the Act were discussed and analysed. Hence, the judge considered the inability to cross-examine on the ‘potential impact of [LE’s] psychiatric disorders’; and on supposed inconsistencies and lies. He also considered an argument that the jury would give undue weight to the applicant’s suggested lies, in circumstances where the complainant could not be further cross-examined.
The trial judge found that there was ‘no unfair risk of a jury placing undue weight on the committal evidence of the complainant’. His Honour said that the jury ‘would be instructed in this respect and they are expected, indeed presumed to follow legal directions’. And he said:
With appropriate directions, in my view, there is simply not a danger that the complainant’s evidence will be given a weight which it does not deserve. I see no risk of improper, illogical, emotional or irrational considerations being invoked. I see no risk of her evidence being accorded more weight than is due to it or in any way adverse to the accused being misjudged by a jury in terms of the weight to accord to it. I do not believe there will be any unfair prejudice to the accused. Accordingly, the probative value is not outweighed by the danger of unfair prejudice …
Essentially for the same reasons as advanced when dealing with exclusion under s 137, the trial judge concluded that was ‘no unfairness to the [applicant] in the trial being conducted by the use of the committal evidence’. His Honour observed that the jury ‘would be properly instructed as to the absence of the witness and I believe the accused can receive a fair trial in such a setting’.
The applicant’s submissions
In this Court, the applicant relied substantially on the same matters in support of the central contentions that the judge should have excluded the complainant’s committal evidence pursuant to s 137 of the Act or the common law unfairness discretion.
Counsel for the applicant submitted that the first the defence knew that LE had ‘borderline personality disorder, schizoaffective disorder‘ was when her death certificate was provided by the prosecution on 5 October 2015. Although subsequently obtained medical records give some information about the diagnosed disorders, and some of the characteristics and symptoms experienced by the complainant, much remains unknown about the disorders and their potential impact upon the reliability and credibility of the complainant at the relevant time (who, of course, can no longer be medically assessed or cross-examined).
It was submitted that the medical records reveal a number of things about LE, including that she:
·had previously been diagnosed with borderline personality disorder and schizoaffective disorder, and may have been previously diagnosed with bipolar disorder;
·has suffered from ‘anxiety and panic disorder and psychotic depression’, in addition to chronic pain related to previous car accidents and the amputation of her left arm;
·reported to a psychiatrist, in June 2013 that she hears ‘voices all the time’ that ‘scam’ her ‘emotionally’ and she is ‘violent, angry’;
·reported to a general practitioner that she was upset about being directed away from West CASA and that intake workers said she was being over counselled or is too complex;
·had been on an array of prescription medication and has used ‘most drugs’ in the past including cannabis and heroin, and had smoked synthetic cannabis;
·had been in a violent relationship prior to moving into the rooming house; and
·was sexually abused by her mother’s uncle on numerous occasions between the ages of nine and 12 years.
In purported reliance upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), counsel contended that borderline personality disorder, schizoaffective disorder and bipolar disorder are very serious mental illnesses, each of which is characterised by a disturbance of thought, mood, perception, behaviour or memory. It was submitted that lying is commonly associated with these illnesses. Had the complainant been available, the applicant would have been entitled to explore these matters on a Basha[9] inquiry and at trial. The lost opportunity to do so, it is said, renders the applicant’s trial unfair.
[9]R v Basha (1989) 39 A Crim R 337.
It was argued that, in considering s 137 of the Act, it was not open to the trial judge to find that LE’s evidence had ‘very strong probative value’, since the probative value of the complainant’s evidence — which necessarily involves considerations of reliability[10] — is reduced by reason of, first, the inconsistencies in the accounts given by the complainant in her police statement compared to her committal evidence; and, secondly, the potential impact of the complainant’s diagnosed psychiatric conditions and other matters disclosed in the medical records.
[10]Dupas v The Queen (2012) 40 VR 182, 196 [63] (‘Dupas’).
There was a danger of unfair prejudice, so it was submitted, because there is a real risk that the evidence will be misused by the jury in some unfair way. The jury may adopt ‘an illegitimate form of reasoning’ or ‘misjudge’ the weight to be given to LE’s evidence. Further, the inability to test the reliability of LE’s evidence carries with it the danger of such misjudgment.[11] Counsel submitted that the present case was distinguishable from Bray,[12] due to the inability to cross-examine on the complainant’s mental disorders.
[11]Dupas, 227 [175].
[12]Bray (a pseudonym) v The Queen [2014] VSCA 276 (‘Bray’).
It was submitted that the trial judge was wrong to reject a submission that the applicant would suffer any unfairness associated with the inability to cross examine the complainant regarding these matters, in circumstances where:
·the existence of the diagnosed psychiatric conditions has a direct impact upon the complainant’s credibility and the reliability of her account;
·the existence of the conditions was not known to the defence prior to the committal hearing, and could not have been discovered through reasonable diligence, so that the lost opportunity to cross examine the complainant about these matters cannot therefore be attributable to any forensic decision by the applicant;
·the material now available to the defence regarding the diagnosed conditions is necessarily limited due to the inability of the prosecution or the defence to now question the complainant about them; and
·although the defence might be able to apply to place expert evidence before the jury as to the possible impact of the diagnosed conditions, this will not overcome the unfairness to the applicant caused by the lost opportunity to explore these issues with the complainant.
Counsel pointed out that the kind of cross-examination conducted in committal proceedings is no substitute for the kind conducted at trial. In particular, there is no obligation on an accused person at committal to disclose his or her defence, or to comply with the rule in Browne v Dunn.[13] Thus, whilst the cross-examination of LE was adequate for the purposes of the committal, it was not sufficient for the applicant to receive a fair trial. The applicant had thus lost the opportunity to put the defence case to the complainant.
[13]Browne v Dunn (1893) 6 R 67.
Ultimately, it was contended that, in the unique circumstances of this case, the lost opportunity to cross examine the complainant about the potential impact of her diagnosed psychiatric disorders renders the admission into evidence of LE’s previous representations unfairly prejudicial. There is, it was argued, an inability for the applicant adequately to test the evidence, and a real risk that the jury will misjudge the evidence or use it in an unfair way.
The respondent’s submissions
It is unnecessary to summarise all of the respondent’s submissions. In essence, however, the respondent submitted that the trial judge correctly applied the principles set out in Dupas and those in Bray, and thoroughly considered the several categories raised by the applicant which were said to give rise to unfair prejudice. The findings that the judge made were, it was submitted, open.
The respondent’s counsel pointed out that the judge had observed that the applicant was not precluded from putting before the jury material which has been disclosed regarding the complainant’s psychiatric condition, or from leading expert evidence directed towards establishing its significance, if any, to the question of the reliability and credibility of the complainant’s version of events. Indeed, so it was argued, it is the prosecution which is disadvantaged by its inability to properly meet this material in the absence of any countervailing evidence from LE. It was submitted that the applicant’s approach to this Court was, at best, premature; since, on the state of the evidence as presently disclosed, it is impossible to conclude that the fairness of the trial will be unacceptably compromised.
Discussion
Assuming its relevance, and subject to any applicable exclusionary rules, the admissibility at trial of LE’s statements to police and other committal evidence is governed by s 65 of the Act. So far as relevant, it provides:
65 Exception—criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
…
(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied —
(a) cross-examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.
…
(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by —
(a) the person to whom, or the court or other body to which, the representation was made; or
(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c) the person or body responsible for producing the transcript or recording.
…
As we have mentioned, the applicant’s counsel expressly abandoned any suggestion that LE’s evidence was not admissible under s 65 of the Act.
Turning to the arguments based on s 137 and the unfairness discretion, it may be acknowledged that, as a result of his and his advisers’ unawareness of LE’s psychiatric history, it is likely that some prejudice has flown to the defence case. Had there been some hint prior to the committal proceedings that the complainant had been psychiatrically unwell, the applicant would probably have been in a position to explore the nature and extent of her condition. And had it transpired that the material supported the suggestion that the complainant was labouring under some psychiatric illness at critical times — whether around the time of the alleged offences or at the time she gave evidence at the committal — and that her mental condition potentially impinged upon her credibility and reliability, the defence might have been able to take appropriate forensic advantage of those matters.
The mere fact that some potential prejudice might flow to the defence from a lost opportunity to explore those matters at committal cannot, however, be determinative of whether the probative value of LE’s evidence is outweighed by the danger of unfair prejudice, or whether any contemplated trial will be unfair.
In our view, it cannot be said that LE’s evidence is bereft of significant probative value. Of particular significance, LE described a serious oral rape having been perpetrated upon her. Despite his earlier untruths, the applicant now admits that the oral penetration relevant to the second rape charge, charge 4, took place, but asserts that the recently admitted act of oral penetration was consensual. Thus, to a large extent, the contemplated trial will revolve around a single central issue. Self-evidently, LE’s evidence is critical to that issue.
The applicant’s counsel contended, however, that LE’s evidence was lacking probative value because her mental condition adversely affected its credibility and reliability. But it cannot be ignored that, at this point, the true nature and extent of the complainant’s psychiatric condition remains largely unexplored, and, to a significant extent, it is somewhat speculative to assay that it might have any effect upon making a proper assessment of her credibility or reliability. There are aspects of the medical records which might tantalise a forensic strategist — such as, for example, the references to LE’s borderline personality, schizoaffective and possible bipolar disorders, coupled with her hearing voices — but, so far as we are presently able to see, no real attempts have yet been made to discern the true significance of the matters referred to in the records. For present purposes, it cannot simply be assumed that the identified references in the medical records are capable of impugning LE’s credibility or reliability. Moreover, absent expert evidence on the topic, the members of this Court cannot have regard to the contents of the records and then inform themselves — as, at least, we were tacitly invited to do — by recourse to DSM-5.[14]
[14]See SD v The Queen (2013) 39 VR 487.
Once it is determined that LE’s evidence possesses significant probative value, its exclusion is only compelled under s 137 of the Act if that ‘probative value is outweighed by the danger of unfair prejudice’. Dupas and other cases[15] make plain that if a trial judge concludes that the probative value of a piece of evidence is outweighed by the risk of unfair prejudice, the evidence must be excluded. No element of discretion is involved. In assessing probative value, a trial judge must evaluate the weight that the jury rationally could attach to the evidence. The necessary balancing exercise does not require the trial judge to assume that the reliability of the impugned evidence will be accepted. In determining the capacity of the evidence rationally to affect the determination of a fact in issue, the judge must make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it is contended that the quality of the evidence (or, perhaps, its lack of quality) might result in the jury giving it more weight than it deserves, the judge is required to assess the extent of the risk. The judge is not required, however, to gauge the weight that the jury will give the evidence, but instead must assess what probative value the jury could give the evidence, and balance against it the risk that the jury will give it disproportionate weight.[16]
[15]For example, McCartney v The Queen (2012) 38 VR 1, 7 [33].
[16]Dupas, 196–7 [63] (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA); Haddara, 92–3 [137] (Priest JA).
In the present case, there is much to be said for the submission of the respondent’s counsel that the applicant’s approach to this Court is premature. Whether there is anything of value to the defence to be gleaned from the complainant’s psychiatric condition is yet to be seen. It is to be noted, however, that the judge has not shut the defence out from leading expert evidence concerning the effect of the complainant’s mental condition on her credibility or reliability,[17] and, indeed, has indicated that jury directions concerning such matters might be given. Moreover, whether the applicant has suffered any unacceptable prejudice from a lost opportunity to cross-examine LE is, on the current state of the medical evidence, incapable of determination. Of course, should further investigation cast more light on LE’s psychiatric condition, such that it may properly be said that an adequate appreciation of its true nature and extent could make a material difference to the evaluative judgment required by s 137, doubtless the applicant will be able to make a fresh application to the trial judge. As things presently stand, however, it cannot be concluded that the judge’s ruling based on s 137 is attended by sufficient doubt to warrant leave to appeal being granted to challenge it.[18]
[17]See Audsley v The Queen [2014] VSCA 321.
[18]Both parties accepted that although a decision under s 137 involves no exercise of discretion, the Court should be guided by the principles in House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See MA v The Queen (2011) 31 VR 203.
Counsel for the applicant also sought to invoke the common law unfairness discretion, relying on the same matters pressed with respect to the application based on s 137. Unlike the judicial task under s 137, the judicial task when Haddara principles are invoked involves a true exercise of discretion, so that there can be no doubt that this Court’s examination of the judge’s ruling attracts House[19] considerations. For much the same reasons that we would not uphold the applicant’s challenge under s 137, we would not uphold the applicant’s challenge to the judge’s exercise of the Haddara discretion. Haddara recognised that there is a general discretion which, despite the promulgation of the Act, continues to inhere in a trial judge to exclude admissible evidence in order that the accused receive a fair trial.[20] There is nothing in the circumstances as they presently obtain which would compel the conclusion that the reception of LE’s evidence would result in an unfair trial.
[19]See n 16 above.
[20]Haddara, 59 [16], 70–77 [51]–[70] (Redlich and Weinberg JJA).
Before departing the unfairness discretion, there is a further case to which we should make reference. Rozenes[21] involved the exercise of what has recently come to be called the Haddara discretion. In that case, a judge in a major drug trial involving several accused excluded the whole of the evidence of a prosecution witness — the evidence being the ‘backbone’ of the prosecution case[22] — on the basis of the witness’s unreliability and lack of credibility arising from his being an accomplice of the accused, together with his general deceitfulness and bad character and the existence of motives to implicate others. In proceedings seeking declaratory relief, the Court (Brooking, McDonald and Hansen JJ) described the trial judge’s decision to exclude the whole of the witness’s evidence as ‘striking’,[23] and observed:[24]
As we have said, we do not think that one can dispute the proposition that, quite apart from the other circumstances which have been authoritatively accepted as giving rise to the discretion to exclude admissible evidence in a criminal trial, the discretion arises whenever it is shown that the reception of certain evidence will be unfair to the accused. But, as we have said, once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether reception of the evidence will make the trial unfair, it becomes difficult to think of a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and its prejudicial effect. In particular … it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury. …
[21]Rozenes and Anor v Beljajev and Ors [1995] 1 VR 533.
[22]Ibid 543.
[23]Ibid.
[24]Ibid 553.
In Rozenes, of course, unlike the present case, the relevant witness was living, and his evidence could be tested before the jury (having already been tested pre-trial). But in the present case, where LE’s evidence is also the ‘backbone’ of the prosecution case, LE was subjected to competent and searching cross-examination at committal, albeit that the nature of cross-examination differed to that which would be employed at trial, since in the committal proceedings there was neither the obligation to comply with the rule in Browne v Dunn, nor the need to put the applicant’s defence. Nonetheless, as we have indicated, LE’s evidence was subjected to moderately rigorous testing.
Moreover, any unfairness to the defence flowing from the absence of LE is, in our view, capable of adequate amelioration by judicial direction. It might be expected that the judge will instruct the jury of the need to take into account the disadvantages flowing from being unable to observe the complainant giving her evidence. We would think that the judge would also direct the jury as to the differences between cross-examination at committal and trial, and instruct the jury to take into account the disadvantages flowing to the defence from the incapacity of counsel at trial to now ‘put’ the defence case and matters important to it. And doubtless, should evidence eventually be introduced casting doubt on LE’s credibility and reliability as a result of her psychiatric condition, the judge will give the jury appropriate warnings on those matters.
Acknowledging that there may be some prejudice to the defence case resulting from LE’s absence at trial, as things presently stand, the extent of that prejudice is not of such an order to compel the conclusion that her absence will result in an unfair trial. Certainly, any unfairness to the defence is not so great as to permit the removal of the backbone of the prosecution’s case.
Conclusion
The application for leave to appeal against the interlocutory decision is refused.
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COURT OF APPEAL
459 Lonsdale Street, Melbourne, VIC 3000
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