R v Andrews
[2010] SASCFC 5
•8 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ANDREWS
[2010] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
8 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - defendant and appellant convicted of one count of aggravated serious criminal trespass at a place of residence and two counts of aggravated robbery - whether verdicts unsafe and unsatisfactory and against the weight of the evidence.
Held: verdicts not unsafe or unsatisfactory - assessment of evidence allowed the conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PUBLIC POLICY - OTHER MATTERS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY - GENERALLY
CRIMINAL LAW - PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED - IN PRESENCE OF ACCUSED PERSON
Whether ruling of Judge upholding a claim for public interest immunity with respect to the identity of an informer gave rise to a miscarriage of justice - whether procedure followed in determining claim for public interest immunity where the defendant and his counsel were excluded from the courtroom during part of the Court's consideration, gave rise to a miscarriage of justice.
Held: the Judge's ruling with respect to public interest immunity not in error - substantial public interest in maintaining confidentiality with respect to identity of informer.
(Gray and Vanstone JJ) procedure followed by Judge in excluding defendant and his counsel when considering claim for public interest immunity did not give rise to any material unfairness nor a risk of a miscarriage of justice.
(White J) exclusion of defendant and his counsel from the courtroom when considering claim for public interest immunity amounted to a significant irregularity in conduct of the trial - however, that inappropriate exclusion did not give rise to a miscarriage of justice and the proviso should be applied.
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Evidence at trial given by one witness called by prosecutor at odds with evidence of other witnesses - prosecutor made submission in closing address that witness' evidence may have been affected by bias or otherwise untruthful - whether prosecutor's submission inappropriate - whether Judge's failure to direct in relation to submission resulted in miscarriage of justice.
Held: (Gray J) Although the witness not having an opportunity to answer an allegation against her credibility, was unfortunate, it was not an irregularity that gave rise to miscarriage of justice.
(Vanstone and White JJ) prosecution submission not irregular and did not give rise to miscarriage.
Held: appeal dismissed on all grounds.
Evidence Act 1929 (SA) s 27; Criminal Law Consolidation Act 1935 (SA) s 353(1); Evidence Act 1995 (NSW) s 38; Evidence Act 1958 (Vic) s 34, referred to.
Alister v The Queen (1984) 154 CLR 404; Haydon v Magistrates Court (2001) 87 SASR 448; R v Lee Kun [1916] 1 KB 337; R v Collie (2005) 91 SASR 339; R v McKelliff (2004) 87 SASR 476; MRW (1999) 113 A Crim R 308; R v Macfie (No 2) (2004) 11 VR 215; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale (2004) 145 A Crim R 345; R v Goncalves (1997) 99 A Crim R 193; R v Colquhoun [2009] SASC 138; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; R v Hillier (2007) 228 CLR 618; R v Davis (1993) 1 WLR 613; Gazepis v Police (1997) 70 SASR 121; Ebatarinja v Deland (1998) 194 CLR 444; R v Preston [1994] 2 AC 130; R v Jones [2003] 1 AC 1; Thomas v The Queen (No 2) [1960] WAR 129; Young v Quinn (1985) 4 FCR 483; Jackson v Wells (1985) 5 FCR 296; Cesan v The Queen (2008) 236 CLR 358; Graham v Police (2001) 122 A Crim R 152; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; Wills v South Australian Railways Commissioner & The New Zealand Insurance Co Ltd (1973) 5 SASR 74; R v Weldon (1977) 16 SASR 421; In the Matter of a Petition by Frits Van Beelan (1974) 9 SASR 163, considered.
R v ANDREWS
[2010] SASCFC 5Court of Criminal Appeal Gray, Vanstone and White JJ
GRAY J.
This is an appeal against conviction.
The Trial
The defendant and appellant, Rick Jay Stanley Andrews, was charged with one count of aggravated serious criminal trespass at a place of residence and two counts of aggravated robbery.
It was the prosecution case that on the afternoon of 25 March 2007 the defendant armed with a gun entered a private residence at Woodville Gardens. The defendant gained entry to the premises by pretending to be a representative from a gas company checking for a gas leak. Once inside, the defendant robbed the two occupants at gunpoint of money and jewellery. In the course of doing so, the defendant discharged the gun. The defendant was arrested by STAR Force officers later on the same day at residential premises at Burton.
The prosecution accepted that its case relied entirely on circumstantial evidence. That evidence may be summarised as follows.
The occupants of the house described distinctive injuries to the intruder’s face and, in particular, reference was made to a scar on the intruder’s face. Following his arrest, the defendant had injuries to his face consistent with the occupants’ descriptions. Photographs tendered at trial revealed scarring to the defendant’s face.
One of the occupants of the Woodville Gardens premises described the intruder as leaving the scene in a distinctive green Commodore. A green Commodore generally fitting that description was located at the Burton residence. There was evidence that the vehicle had been lent to the defendant by an acquaintance the previous day. The keys to the vehicle were in the possession of the defendant on his arrest.
The occupants described the intruder as wearing a brightly coloured workers’ vest. There was evidence connecting the defendant with properties at which brightly coloured workers’ vests were located.
The defendant was arrested by STAR Force officers at residential premises at Burton. A female associate of the defendant resided at these premises. At that property police located jewellery that had been taken from the Woodville Gardens property. Other persons present at the Burton premises did not fit the description given by the occupants.
The occupants of the Woodville Gardens property had described the intruder as wearing a beard. The investigating police located an electric shaver and shaved hair on the ground at the rear of the Burton property. It was the prosecution case that it was open to the jury to infer that if the defendant was the intruder he then attempted to change his appearance by shaving his head and face after the incident.
An examination of the steering wheel, handbrake and gearstick of the green Commodore revealed gunshot residue. Gunshot residue was also found on the defendant’s hands. However, the prosecution accepted that there was a possibility of gunshot residue having been transferred from STAR Force officers to the person of the defendant at the time of his arrest.
While in custody on remand, the defendant made a telephone call during which he made statements that implied he was responsible for placing the jewellery at the Burton premises.
The defence case was that the defendant was not the intruder. The defendant did not give evidence or present any other evidence at trial. The issue at trial was one of identity.
It was the defence case that the defendant had sustained the distinctive injuries to his face at the time of his arrest by STAR Force officers. That position was put forward by the defendant during police interviews following his arrest. It was contended that the prosecution had not established the defendant’s involvement beyond reasonable doubt.
Following a trial before a jury in the District Court the defendant was convicted by majority verdict on each count.
The Appeal
On appeal it was submitted that the verdicts were unreasonable and against the weight of the evidence and that each of the convictions should be set aside. Further issues arose for consideration. The defendant complained about a ruling upholding a claim for public interest immunity and about the procedure followed in the determination of that claim. It was further complained that the prosecutor made an inappropriate submission that was not open on the evidence and was not corrected by the trial Judge. It was the defendant’s submission on appeal that these matters represented errors that led to the risk of a miscarriage of justice.
Before coming to discuss the submission that the verdicts were unsafe, it is convenient to first address the other matters of complaint.
Public Interest Immunity – The Claim
At trial, the prosecutor made a claim of public interest immunity with respect to part of the contents of the notes of a police officer. Initially the prosecutor sought immunity to extend both to the contents of the notes as well as to any information about the topic of the claimed immunity. However, at trial, through inadvertence, reference was made to the topic of immunity in the presence of the defendant. On appeal, there was no attempt to maintain immunity in regard to the topic – the existence of an informer. However, throughout the proceedings the identity of the informer was said to be subject to public interest immunity preventing its disclosure.
Pubic Interest Immunity – The Guiding Principles
It is convenient to identify immediately the principles that guide the Court when determining a claim to public interest immunity.
At common law the prosecutor’s duty of disclosure extends to providing the defence with access to any and all evidential material in the possession of the prosecution: which may be relevant or possibly relevant to an issue in the case; may raise or possibly raise a new issue the existence of which is not apparent to a defendant from the evidence the prosecution proposes to use; or, may hold out a real prospect of providing a lead on evidence relevant to an issue or a new issue.[1]
[1] Mallard v The Queen (2005) 224 CLR 125 at [17]; Grey v The Queen (2001) 75 ALJR 1708 at [23]; R v Reardon (No 2) (2004) 60 NSWLR 454; R v Spiteri (2004) 61 NSWLR 369; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; D v State of Wesetern Australia (2007) 179 A Crim R 377; De La Espriella-Velasco v The Queen (2006) 31 WAR 291; Easterday v The Queen (2003) 143 A Crim R 154; the duty is codified in Queensland, see R v Rollason & Jenkins; Ex parte Attorney-General (2008) 1 Qd R 85.
The obligation and duty of disclosure does not extend to matters relevant only to the credit of a defendant. The duty is a continuing duty.[2] Disclosure may be withheld, however, on the ground of public interest immunity.
[2] The outlined position reflects the common law in England and Wales prior to statutory intervention: R v Maguire [1992] QB 936; R v Ward [1993] 2 All ER 577; R v Keane [1994] 2 All ER 478; R v Brown [1998] AC 367.
Where a claim of public interest immunity is asserted in relation to evidential material in the possession of the prosecution which falls prima facie to be disclosed, it is, the Court was informed, the practice in this State for the Director of Public Prosecutions and not the Police to determine whether such claim should be asserted.[3] Upon the Director determining it to be appropriate to assert a claim of public interest immunity, it remains the duty of the Court, not the privilege of the Executive, to determine whether evidential material should be produced or may be withheld in the public interest.[4]
[3] R v Solomon (2005) 92 SASR 331 at [116]; section 10A of the Director of Public Prosecutions Act 1991 (SA).
[4] Sankey v Whitlam (1978) 142 CLR 1 at 38, 58-59, 95-96; R v Ward [1993] 2 All ER 577 at 603.
Where the Director does claim public interest immunity in relation to evidential material which would otherwise fall to be disclosed as a consequence of the prosecutor’s duty, the Court was informed that the practice in this State is for the Director to advise the defence of the existence of the material and its general nature without compromising confidentiality, and of the asserted right to withhold the material. If issue is taken, the matter may be the subject of determination by a court upon the return of a subpoena or other application.[5]
[5] This approach may be contrasted with that of England and Wales as set out in R v Davis [1993] 2 All ER 643 at 647.
Where a claim of public interest immunity is contested, the basis upon which the claim is made is usually supported by affidavit evidence setting out the grounds for the claim. The affidavit will not be disclosed if to do so will undermine the claim. Generally so much of it is disclosed as can be revealed without compromising the claim.
In determining a claim of public interest immunity, the court undertakes a balancing exercise, whereby the asserted public interest against disclosure is weighed against the public interest in ensuring that the court has access to all relevant evidence. In Alister,[6] Gibbs CJ observed:
Sankey v Whitlam establishes that when one party to litigation seeks production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely, whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration – i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and on the other hand that there are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. …
[6] Alister v The Queen (1984) 154 CLR 404 at 412; Haydon v Magistrates Court (2001) 87 SASR 448. see also Conway v Rimmer [1968] AC 910 at 940 (Lord Reid).
An ex parte application for public interest immunity may be made, where advising the defence of the existence of the material, its general nature and of the asserted right to withhold the material, would reveal that which the prosecution contends should not in the public interest be revealed.[7] In other words, where advising the defence as above would fundamentally undermine the purpose for which the claim was made, an ex parte application may be appropriate.
[7] R v Davis [1993] 2 All ER 643 at 647.
The identity of a police informer is, as a matter of public policy, protected against disclosure unless there is good reason to think that disclosure may be of substantial assistance to a defendant in answering the case against him.[8] The rule regarding the disclosure of identity of a police informer is a particular manifestation of the doctrine of public interest immunity.[9] The immunity in this respect covers any material from which the informer’s identity might be deduced.[10] The justification for protecting the identity of informers is that unless anonymity of informers is protected, sources of information would dry up and the prevention and detection of crime would be hindered.[11] A police officer is not permitted to disclose information that could serve to identify an informer[12] and the public interest immunity against disclosure of police sources of information cannot be waived.
[8] Jarvie v The Magistrates Court of Victoria [1995] 1 VR 84 at 89; R v Meissner (1994) 76 A Crim R 81 at 88.
[9] Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246 (McHugh JA); Haydon v Magistrates Court (2001) 87 SASR 448 at 462-463; Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 at 311.
[10] Rogers v Home Department State Secretary [1973] AC 388 at 401; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674.
[11] D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218; Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 at 311; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-675; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247.
[12] Marks v Beyfus (1890) 25 QBD 494 at 498, 500; Signorotto v Nicholson [1982] VR 413 at 417.
In the event that public interest immunity is ordered by the Court to prevent disclosure, that immunity lasts only as long as the public interest in favour of non-disclosure predominates.
In Haydon v Magistrates Court,[13] Doyle CJ approached the question of the informer rule by weighing competing public interests; that is, the public interest in the preservation of anonymity of the informer and the protection of material provided by informers, against the public interest in the accused receiving a fair trial in which the Court has access to all relevant material.[14] In the course of conducting this balancing exercise, if it is demonstrated that there is good reason to consider that non-disclosure may result in substantial prejudice to a defendant, and that for example, disclosure may be of substantial assistance to the defendant in combating the case for the prosecution, the balance has been shown to incline in favour of disclosure.[15]
[13] Haydon v Magistrates Court (2001) 87 SASR 448.
[14] Haydon v Magistrates Court (2001) 87 SASR 448 at [13]-[18]; (Perry J, with whom Olsson J agreed).
[15] Jarvie v Magistrates Court of Victoria [1995] 1 VR 84 at 88-90; R v Meissner (1994) 76 A Crim R 81; R v Mason (2000) 74 SASR 105 at [36]-[45]; Haydon v Magistrates Court (2001) 87 SASR 448 at [28]-[31], [118].
Public Interest Immunity – The Procedure
The defendant contended that the procedure adopted by the trial Judge to determine the claimed public interest immunity, was flawed; that procedure involved the exclusion of the defendant from the proceedings as the application was heard ex parte. It was complained that the defendant was inappropriately excluded from that part of the trial and that his exclusion was compounded by a want of procedural fairness through a lack of relevant disclosure to defence counsel.
The defendant complained that his absence for part of the trial offended a long-standing principle enunciated by Lord Reading in Lee Kun as follows:[16]
...there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it. …
[16] R v Lee Kun [1916] 1 KB 337 at 341 (Lord Reading CJ); R v Collie (2005) 91 SASR 339 at [33]-[38] (Duggan J).
It was submitted that in accordance with this principle, to the extent that it was possible to do so, any claim for public interest immunity from disclosure of material relevant to the case should take place in the presence of the defendant, or at the very least defence counsel. It was pointed out that usual practice was for affidavits to be filed setting out the basis for the claim. Reference was made to the decision of this Court in McKelliff[17] and the procedure utilised in that case. It was said that in the ordinary course a defendant or his counsel would have the opportunity to read the affidavits subject to the masking of any sensitive material.
[17] R v McKelliff (2004) 87 SASR 476 at [13]-[18].
The defendant contended that the Judge’s decision to hear oral evidence ex parte was not the appropriate course to be followed. It was claimed that this procedure excluded defence counsel from making any effective submissions in regard to the prosecution application for an order upholding the claimed immunity.
At trial the prosecutor disclosed the content of the police officer’s notes save for certain details to which the claim of public interest immunity related. The claim was signified and effected by the blacking out of the relevant words and a copy of the masked notes provided to the defendant.
The Judge received and inspected a copy of the original notes without any “blacking out”. Thereafter the Judge proceeded to hear the application of public interest immunity ex parte. This allowed the prosecution to make preliminary submissions in support of the claim for immunity in the absence of the defendant and his counsel. At this point of the proceedings the prosecution indicated that upon defence counsel undertaking not to disclose to the defendant the fact that the claim concerned an informer, there would be no objection to defence counsel being present. On that undertaking being given, the Judge proceeded to hear limited submissions from defence counsel on the application. The submissions were limited by the restricted information provided to defence counsel.
Having heard submissions from defence counsel, the trial Judge then reverted to an ex parte hearing in which he heard oral evidence led by the prosecution in support of the application. The evidence was led in substitution from the provision of a sealed affidavit.
The prosecutor submitted to the Judge that the claim should be upheld. It was said that there was a genuine fear of reprisal should the identity of the informer be revealed. It was claimed to be important to maintain the confidentiality of the informer’s identity and the Judge had to balance that factor with the potential importance of the identity of any informer for the defence case. The Judge accepted the Director’s submissions and upheld the claim of immunity. Nevertheless, the Judge indicated that he would keep the ruling under review for the remainder of the trial. The issue of identity of the informer was raised later in the trial. The Judge maintained his earlier ruling.
The purpose of procedure is to assist the conducting of a fair trial. It is for a trial Judge to adopt procedures appropriate to the circumstances of the trial. Procedures may vary. There is and should be flexibility. The question in the present proceedings is whether the procedure adopted by the trial Judge to determine the claim of public interest immunity was an appropriate procedure or, more particularly, did any material unfairness arise from the procedure followed.
A review of the transcript reveals that defence counsel did not object to the procedure followed and, in particular, did not object to the defendant being out of Court at the time of the relevant hearings in respect of the application for public interest immunity. It was also apparent, it was said, from the record of interview, that the defendant was already “alive” to the existence of an informer and the possible identity of that informer.
In my view, the procedure followed by the trial Judge did not cause any material unfairness. It was important that confidentiality be maintained over the claimed confidential material. It was appropriate that that confidentiality be maintained both against the defendant and, to some extent, against his legal advisors. The use of a sealed affidavit and the provision of sealed written submissions would have enabled the Judge to determine the claim without the defendant having any information about the confidential material. There could have been a limited disclosure of the sealed material to defence counsel on an undertaking as to non-disclosure and, if necessary, sealed written submissions not available to the defendant. Alternatively, the application could be heard in the absence of the defendant and, save in limited respects, in the absence of his legal advisors. The alternative procedures have the same substantive effect; the defendant would be precluded from being aware of the confidential material and the confidential submissions. In the circumstance where there was no objection from the defendant it was not inappropriate for the Judge to follow the procedure that was in fact followed. In my view, there is no substance to the defendant’s complaints with respect to the procedure followed.
Public Interest Immunity – The Ruling
The Judge did not provide reasons for his ruling other than to say:
HIS HONOUR: The issue which I’ve currently determined adversely to you is the issue of whether in my view the identity of the informant might provide you with information which in turn might enable you to further your defence, improve your defence, choose whatever version you like. Even if I’m with you on that, I then have to undertake the balancing exercise in the ordinary way.
[DEFENCE COUNSEL]: I certainly agree with that.
HIS HONOUR: I’ve got your point. As I’ve said, I’ll keep the matter under review.
The Judge provided a report to this Court following the lodging of the appeal and in respect of this present topic reported:
Given the sensitivity which often surrounds questions of public interest immunity, the transcript of the argument and the ex parte proceedings has been sealed.
The transcript is largely self-explanatory. Given prosecuting counsel’s intimations, it seemed to me that the only way to preserve the immunity pending the outcome of the requisite balancing exercise was to proceed ex parte. I believe I had power to do so: R v Davis (1993) 2 All ER 643.
I proceeded as one might on the return of a subpoena and considered whether the material sought by defence counsel was potentially relevant to any issue in the trial.
I determined that the information over which immunity was claimed had no potential relevance to any live issue in the case as things then stood. I informed counsel for the accused that I would review the matter as the evidence unfolded. I did so and heard nothing that changed my mind.
Whether or not the procedure I followed and my ultimate decision are potentially productive of miscarriage is not for me to comment about.
On appeal, the defendant contended that the ruling upholding the claim of immunity was incorrect. It was said that disclosure of the notes and in particular the identity of the informer was a critical matter to the defence case and that a fair trial necessitated disclosure.
On appeal the defendant submitted that the disclosure of the identity of the informer would strengthen the defendant’s case that he sustained facial injuries when arrested. The argument was developed as follows. It was suggested by the defendant that the informer was his father. The defendant’s father was present in the vicinity of the Burton premises at the time of the defendant’s arrest by the STAR Force officers. The defence contended that if the defendant’s father was the informer, it was unlikely that the STAR Force officers would have apprehended him with force. This was said to add support to the assertions of the female associate that the person she saw being arrested, subjected to considerable force and at relevant times face down on the ground, was the defendant.
The Director pointed out that apparently the defence were aware that the claimed immunity related to the identity of an informer. It was an issue that was able to be explored by the defendant at trial if he wished. The notion that the informer was possibly the defendant’s father had occurred to the defendant at trial, yet the relationship between the defendant and his father did not form any part of the defence case. There was no evidence and no suggestion of an accomplice being involved in the offences the subject of charges. Accordingly, there was no possibility that the defendant lost the benefit of an accomplice warning. One suggestion made at trial by the defendant was a reasonable possibility that the intruder was an unknown person who left the scene of the crime over the rear fence when the police arrived. The identity of an informer could not assist the development of this possibility.
The question for the Judge was whether the public interest in preserving the identity of the informer was outweighed by the public interest in ensuring that the Court had access to all relevant evidence.
The matters outlined above demonstrate that the identity of an informer was not a critical matter to the defence case at trial and would not have substantially assisted the defendant in conducting his case. Matters where the informer’s identity may have provided such assistance, including if the informer was an accomplice, did not relevantly arise.
In my view, the Judge was entitled to take the view that there was a substantial public interest in maintaining confidentiality with respect to the identity of the informer. The personal risks to the informer and the long-term risks to police investigations were significant. The possible benefits to the defendant in the trial were not significant. At most they gave rise to some possible support to the assertions of the female associate. I consider that the Judge, on the information available at trial, was entitled to reach the conclusion that the balance favoured public interest immunity.
The Prosecution Submission
As earlier discussed the prosecution case on identity was supported by evidence from the occupants of the house that the intruder had distinctive injuries to his face. The defence through cross-examination suggested that the injuries had been caused by STAR Force officers at the time of the defendant’s arrest.
The prosecution presented the female associate of the defendant as a witness. She gave evidence of the arrest of the defendant. Her description of the arrest provided some support for the suggestion that the defendant had suffered injuries to his face at the time of the arrest. She described the defendant as lying face-down on the ground at the time of his arrest. It was the defence case that this evidence explained injuries to the defendant’s face. It was contended that as these were recent injuries and had occurred at the time of the arrest, there was a real possibility that the defendant was not the person observed by the occupants of the house. In particular it was said that there was an explanation for the injuries to the defendant’s face that was inconsistent with the prosecution case on identity.
The arresting STAR Force officers gave evidence of the apprehension of the defendant’s father occurring at or about the same time as the arrest of the defendant. It was suggested by the prosecution at trial that one of the STAR Force officers, a Brevet Sergeant Down, when giving evidence of a person being apprehended as being on the ground, may well have been referring to the arrest of the defendant’s father and not the defendant.
During the prosecution final address it was submitted to the jury that the female associate of the defendant may also have witnessed the apprehension of the defendant’s father. That submission was in the following terms:
What I suggest about [the female associate] is that there are really three options for you to consider. The first option is that what she told you is what happened; that is, the accused was arrested in the front yard … and that she saw a kicking and a punching motion towards him, although you will remember she did not suggest that she saw any direct contact between police and the accused at that point.
The second option is that she was perhaps mistaken about what she saw and that what she saw was perhaps, actually, the apprehension of the father of the accused. After all, she said that when she looked out the window, she saw the accused face down.
…
The third option is that perhaps due to the nature of the relationship with the accused - she told you her daughter was still in a relationship with him - she was somewhat biased in what she told you about that evening and perhaps not even being entirely truthful with you about it. Might not her relationship with the accused have clouded what she told you about that night? After all she, like any witness in this trial giving evidence, was giving evidence from a particular perspective and that was, essentially, in the position of the mother-in-law of the accused.
So, just looking at option No.3 for a moment, ask yourselves what did you make of [the female associate] as a witness? Do you think, perhaps, that she did come to court with a little bias in favour of the accused?
It is to be observed that these suggestions had not been put to the female associate by the prosecutor in examination-in-chief.
The complaint on appeal was that the submission of the prosecutor in her final address should not have been made. It was said to have been a breach of duty to have made the submission. It was claimed that there was no evidentiary basis for suggesting that either Sergeant Down or the female associate may have observed the arrest of the defendant’s father. It was further claimed that there was no evidence to support the submission that the female associate had been biased or untruthful.
The Judge in the course of his summing up, read to the jury passages from Sergeant Down’s evidence as well as from other officers involved in the arrest. Having done so, the Judge then informed the jury that it would be for them to determine whether there was in fact any evidence which had the capacity to support the contention of the prosecutor that the man Sergeant Down saw being arrested was the defendant’s father. The Judge also reminded the jury of the suggestion made by the prosecution, that the female associate might too have seen the apprehension of the defendant’s father, or alternatively, may have been biased or untruthful in her account. The Judge did not further direct the jury in this respect.
The defendant on appeal complained that this aspect of the summing up was inadequate and that the Judge in the circumstances had a positive obligation to direct the jury to ignore the prosecutor’s submissions on this topic in their entirety.
On my review of the evidence, it was open to the prosecution to invite the members of the jury to infer that the arrest witnessed by Sergeant Down and the female associate was that of the defendant’s father rather than the defendant. It is incorrect to assert that there was no evidentiary basis for the prosecution’s submissions. Sergeant Down in his evidence made a number of comments consistent with the man he saw arrested being the defendant’s father. Those remarks related to the positioning of the men, their build and the sequence of events. The female associate in her evidence acknowledged that the person she observed being arrested was face down. Insofar as the prosecutor asserted that the arrest observed by Sergeant Down and the female associate might have been that of the father, this was an inference open on the evidence.
The potentially more significant issue on appeal in relation to the prosecutor’s submissions in closing address, is the allegation of untruthfulness or bias made with respect to the female associate of the defendant.
The question that arises in respect of the female associate is whether the prosecutor could go so far as to suggest to the jury that the witness called by the prosecution had been untruthful, in circumstances where the witness had not had the opportunity of addressing and answering the allegation of untruthfulness. Ultimately, the question is one of fairness,[18] and much will depend on what use the prosecution seeks to make of an asserted lack of truthfulness.
[18] See MRW (1999) 113 A Crim R 308 at [37].
It is to be observed that in the circumstances of this trial, the prosecutor did not assert that the female associate of the defendant had been untruthful by reason of a prior agreement with the defendant. Nor did the prosecutor invite the jury to draw an inference adverse to the defendant in the event that they considered the female associate’s evidence to be biased or untruthful.
In Macfie (No 2)[19] Eames JA embarked on a consideration of the relevant principles regarding a prosecutor’s duty to give a witness an opportunity to meet the prosecutor’s criticisms. In that case, Eames JA distinguished the New South Wales authority of MRW,[20] where it was held that the unfairness to the witness amounted to a serious irregularity which warranted the allowing of the appeal. In MRW the prosecutor asserted that the witness was party to an agreement to give false evidence. In distinguishing the circumstances in Macfie from such an irregularity, Eames JA observed:[21]
…the first distinction between MRW and the present case is that, as Greg James J held, the prosecutor’s address went “well beyond” merely submitting that the evidence of the daughter was incorrect. It amounted to an assertion that she had agreed with her father to commit perjury, and from that fact the father’s guilt could be inferred. Greg James J held, however, that there was no evidentiary basis for putting that proposition to the jury and for inviting the jury to disregard the evidence that the witness gave, because the assertion that she had reached such an agreement with her father had not been put to the witness.
In contrast to MRW, the criticism of the witnesses in the present case was peripheral to the prosecution case and the prosecutor did not rely on the suggested dishonesty of the witnesses as proof of the Crown case. The comments about the witnesses were relevant only to explaining why it might have been that they did not see or admit what the Crown said was occurring under their roof, or proximate thereto, and also why the complainant had not complained to her parents about the conduct of the applicant.
[Footnote omitted]
[19] R v Macfie (No 2) (2004) 11 VR 215.
[20] MRW (1999) 113 A Crim R 308.
[21] R v Macfie (No 2) (2004) 11 VR 215 at [42]-[43].
The prosecutor’s submission in the present proceedings did not go so far as to suggest that the female associate was in league with the defendant or that there had been a deliberate pre-conceived plan to lie. Furthermore, the criticism of the female associate was peripheral to the prosecution case rather than integral as it was in MRW.
It is of further relevance to point out that the prosecutor did not simply tender the female associate for cross-examination without asking relevant questions of the witness about the arrest and what she saw. The prosecutor did in fact question the female associate about the topic of the arrest. In commenting on this aspect of the matter, Eames JA in Macfie noted:[22]
The second difference between the approach adopted by the prosecutor in MRW and that in the present case was that, as the judge held in MRW that attack came “after simply tendering the witness for cross-examination without affording the opportunity to the witness to deal with the matter of the attack”. In the present case the prosecutor did not simply leave the witnesses to be cross-examined, but asked relevant questions, including as to their state of knowledge about whether sexual relations had been taking place between their daughter, other girls, and the applicant, and the defence counsel also asked such questions. As I shall discuss, unlike the situation that pertained in New South Wales by virtue of s 38(1) of the Evidence Act 1995 (NSW) there was little more that the prosecutor could do in this State by way of himself confronting the witnesses with the criticisms he later proposed to make.
[Footnote omitted]
[22] R v Macfie (No 2) (2004) 11 VR 215 at [44].
In the present proceedings, as in Victoria and in contrast to New South Wales, there was little that the prosecutor could do to challenge the witness in respect of the criticisms that were later made. In South Australia, there are limits on how far a party calling a witness may impeach the credit of the witness. In this respect section 27 of the Evidence Act 1929 (SA) provides:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but if the judge is of opinion that the witness is adverse, the party may—
(a) contradict the witness by other evidence; or
(b) with the permission of the judge, prove that the witness has made, at any other time, a statement inconsistent with his present testimony: Provided that, before giving such last-mentioned proof, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
The elements of hostility have been much discussed[23] and it is unnecessary for the purposes of the present proceedings to examine them.
[23] McLellan v Bowyer (1961) 106 CLR 95 at 103-104; R v Hutchison (1990) 53 SASR 587 at 592; See discussion in Dempsey v Dempsey [2002] SASC 87 at [40]-[48].
Relevantly in Macfie, when distinguishing the New South Wales line of authority,[24] Eames JA discussed the ability of the prosecutor to impeach the credit of their witness short, of declaring them hostile:[25]
It is also important to appreciate that in assessing the duties of the prosecutor in each of those cases the Court of Criminal Appeal had regard to the statutory powers available to the prosecutor to make application under s 38(1) of the Evidence Act 1995. As was the case for two witnesses in Teasdale, the prosecutor could have applied for leave to cross-examine the witnesses on the basis that their evidence was unfavourable to the Crown. There is no equivalent provision in Victoria, indeed, by s 34 of the Evidence Act 1958 a party calling a witness may not impeach the credit of the witness, save if the witness is declared hostile. There was no basis for any such application to be made in this case, nor did the prosecutor attempt to do so. I assume that when he called the parent’s the prosecutor knew he was likely to make adverse comments about their conduct and their evidence, but he was not entitled to cross-examine them.
[Defence counsel] submitted that the prosecutor ought to have asked each witness a question such as, “If it was to be suggested that you condoned the commission of these offences by your daughter what would you say to that?”. Counsel contended that there were two reasons why that ought to have occurred. In the first place it was fair to the witnesses. Secondly, it enabled the jury to assess the evidence of the witnesses by seeing it tested on those topics, and that may have benefited the accused. Conversely, by not allowing the witnesses that opportunity to respond, such of their evidence as was supportive of the accused may have been unfairly tarnished in the eyes of the jury.
In the first place, I am not persuaded that a question couched in those terms would be other than a leading question. Nor am I persuaded that it would be a relevant question to be asked by counsel calling the witnesses, in that it would constitute merely an impermissible attack on credit of his own witnesses. However, even assuming that the question if asked would have been relevant and non-leading (or would have withstood objection) and that it would have been fair to the witnesses — by giving them an opportunity to answer the contention — did the failure to ask such a question render the applicant’s trial unfair?
Although [defence counsel] complained that the course adopted by counsel was unfair to the witnesses that question is not relevant to this application. Rather, the issue is whether the course adopted concerning the witnesses caused the trial of the accused to miscarry. It may well be improper advocacy for a prosecutor to deny a witness the right to answer an allegation to be made against his credibility, but (assuming, without deciding, that it would be improper conduct towards the witness) that would not necessarily impinge on the fairness of the trial of the accused. A witness might, for example, have been treated very unfairly but in the end have given evidence which could not have been harmful to the accused.
[Emphasis added – footnotes omitted]
[24] MRW (1999) 113 A Crim R 308; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale (2004) 145 A Crim R 345.
[25] R v Macfie (No 2) (2004) 11 VR 215 at [51]-[54].
Eames JA further discussed the possibility of the prosecutor calling the witness, but asking no questions of them on the topic impugned and then making no comment during the address. In this respect, his Honour noted that had this course been taken, it would be “inconceivable that the jury would not have addressed the topic of its own accord”.[26] Eames JA further observed:[27]
…The prosecutor knew the evidence that the parents would give, given their previous appearances, and knew they would be likely to give some evidence upon which he would found a submission to the jury that their evidence in that respect was false. They had relevant evidence to give, being “essential to the unfolding of the narrative”, having been occupants of the house where the events were said to have occurred.
Silence on the part of the prosecutor might have unbalanced the trial, given that defence counsel had put as leading questions the propositions he did in reliance on the evidence of the parents. The jury would then have had no assistance from counsel as to what they ought make of that evidence if they found it incredible in some respects.
The prosecutor, in my view, merely invited the jury to draw an inference from the evidence, and to reject some of their evidence. His submission did not undermine a fair trial.
[26] R v Macfie (No 2) (2004) 11 VR 215 at [56].
[27] R v Macfie (No 2) (2004) 11 VR 215 at [58]-[60].
In concluding his reasons in Macfie,[28] Eames JA referred to Goncalves,[29] where the Judge had concluded that there is no rule prohibiting a party from submitting that the jury might disbelieve portions of the evidence which were not consistent with the guilt of the accused person.[30] The approach taken by Eames JA in Macfie was referred to with approval by the Court of Criminal Appeal in this state in Colquhoun[31] where David J expressly found the Victorian approach to be correct.
[28] R v Macfie (No 2) (2004) 11 VR 215 at 230.
[29] R v Goncalves (1997) 99 A Crim R 193.
[30] This approach from R v Goncalves (1997) 99 A Crim R 193 was accepted in this Court in Graham v Police (2010) 122 A Crim R 152 at [44] (Gray J).
[31] R v Colquhoun [2009] SASC 138 at [30] (David J, Vanstone & Anderson JJ agreeing).
It is to be noted that the authorities on the prosecutor’s duty, although examining unfairness to a witness, all make clear that the ultimate question is whether an accused had a fair trial;[32] that is, did the course adopted concerning the female associate cause the trial of the defendant to miscarry?[33] In the present proceedings, the female associate was not afforded an opportunity to answer the allegation as to her credibility. This was unfortunate, however it was not an irregularity of such a nature as to impinge on the fairness of the trial of the defendant. As noted above, the topic under discussion was peripheral rather than integral to the prosecution case.
[32] R v Teasdale (2004) 145 A Crim R 345; see also R v Kennedy (2000) 118 A Crim R 34; MRW (1999) 113 A Crim R 308; R v Vollmer [1996] 1 VR 95 at 139; particularly see R v Macfie (No 2) (2004) 11 VR 215 and R v Mark [2006] VSCA 251 at [70].
[33] See R v Vollmer [1996] 1 VR 95 as cited in R v Macfie (No 2) (2004) 11 VR 215 at [54].
The prosecutor properly confined her submission to inferences open on the evidence. There was a direct contrast between the evidence of the female associate and that of the arresting officers. The conflict in the evidence was stark and would have been readily apparent to the jury. It was appropriate for the prosecutor to address this conflict and the incompatibility of the evidence. To assist the jury in resolving the conflict, given the relationship between the defendant and the female associate, one possibility that arose for consideration was that of bias and consequent untruthfulness. The evidence of the witnesses, of itself provided sufficient basis for the jury to arrive at that conclusion.[34]
[34] See comment in R v Macfie(No 2) (2004) 11 VR 215 at [49].
It is relevant to observe that defence counsel did not to apply to have the female associate recalled, so that the allegations of bias and untruthfulness could be put to her directly. Counsel did not seek any special direction from the Judge with respect to the allegations of bias and untruthfulness.
It is to be noted that at the time of trial, following the impugned submission in the prosecutor’s address, the complaint raised was that the submission to the jury had no evidentiary basis, rather than any complaint as to any unfairness occasioned by the witnesses. Defence counsel complained that there was no evidentiary basis to suggest that what Sergeant Down observed was the arrest of the defendant’s father and that what the female associate observed was also the arrest of the father rather than the defendant. No complaint was made as to the unfairness to the female associate in failing to put to her that she was biased or had been untruthful in her account. This complaint was not raised until the hearing of the appeal. In these circumstances, absent some real prejudice occasioned to the defendant, the defendant’s complaint on appeal should be rejected. In the circumstances, I am satisfied that no risk of a miscarriage of justice arose.
Unsafe and Unsatisfactory
The High Court in M[35] resolved that when deciding whether a verdict is unreasonable and cannot be supported by the evidence, the test to be applied is whether the appellate Court considers that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. The Court is required to review the evidence at the trial. The relevant question is whether the jury must have entertained a doubt about the defendant’s guilt. As was observed in Libke:[36]
…the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …
[Footnote omitted- original emphasis]
[35] M v The Queen (1994) 181 CLR 487 at 493.
[36] Libke v The Queen (2007) 230 CLR 559 at 596-597.
In reaching a determination as to whether the verdicts could be supported by the evidence, the Court must bear in mind the advantage enjoyed by the jury in its assessment of the evidence, having observed the witnesses and their demeanour when giving evidence.[37] The Court must also make its own assessment of the evidence.
[37] See the remarks of Johnson J with whom McClellan CJ at CL and Hoeben J agreed in Chahine v R [2006] NSWCCA 179 at [88].
In a circumstantial case such as the present proceedings, the evidence must be considered in its entirety. As was observed by the members of the High Court in Hillier:[38]
[38] R v Hillier (2007) 228 CLR 618 at [46], [48].
… It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
…
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[Footnotes omitted - original emphasis]
As noted on appeal, this Court must make its own assessment of the evidence. As with the jury’s consideration of the evidence, that assessment is of the cumulative effect of the evidence. Due regard should be given to the common experience of human affairs and the common sense brought by the jury to their determination of guilt or innocence.
In the circumstances of the present proceedings, as outlined above, the circumstantial evidence relied on by the prosecution included: the occupants’ description of the injuries to the intruder’s face, and the injuries to the defendant’s face which corresponded with that description; the occupants’ description of the intruder as wearing a brightly coloured worker’s vest and the discovery of such worker’s vests on properties connected with the defendant; the arrest of the defendant at the house at which jewellery taken in the robbery was located – although other people were present at that house, none fitted the description of the intruder; the discovery of a shaver and shaved hair on the ground at the rear of that house allowing the potential inference that if the defendant was the intruder, he had attempted to change his appearance by shaving his head and face subsequent to the incident; the description by one of the occupants of the intruder leaving the scene in a distinctive green Commodore and a Commodore matching that description being located at the address where the defendant was arrested, along with the keys to that vehicle being found in the defendant’s possession; the discovery of gunshot residue on the steering wheel, handbrake and gearstick of the Commodore and on the defendant’s hands - although the residue on the defendant’s hands may have been transferred in the course of his arrest; and, the telephone call made by the defendant while in custody following his arrest during which he made a statement implying that he had placed the jewellery at the Burton premises.
An independent assessment of the evidence outlined allows the conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. It cannot be said on the evidence that the jury must have entertained a doubt about the defendant’s guilt.
Conclusion
I would dismiss the appeal.
VANSTONE J: I have had the benefit of reading the reasons in draft of Gray J and White J. I agree with them that this appeal should be dismissed.
In his reasons Gray J summarises the factual context of the various issues and I need not cover that ground again. I agree that on the material before him, the trial judge’s ruling on the question of disclosure of the basis for the claimed public interest immunity and the identity of the informer was correct. I agree with the reasons of both Gray J and White J for so deciding.
The procedure followed in this case, and in particular the exclusion of the appellant and, briefly, his counsel, from the courtroom while the claim for public interest immunity was explored, is very unusual. However, I agree with Gray J that, had the trial been interrupted and delayed while the relevant police evidence was reduced to affidavit form for the judge’s eyes, the procedure would have been barely more satisfactory from the appellant’s viewpoint and the result the same. The judge plainly acted to expedite the resolution of the issue, without allowing it to jeopardise the trial. I would be slow to criticise such a decision made in the pressing circumstances faced by the trial judge. I do not consider that the brief exclusion of the accused or his counsel was an irregularity of such character as to call into question the propriety of the trial.
I turn to the issue arising from the final address to the jury of counsel for the prosecution. I cannot agree with counsel’s submission that the conduct of prosecuting counsel in respect of Ms Williams – either in counsel’s examination-in-chief, or references to Ms Williams in the final address – was in any way reprehensible. In order to consider this issue it is necessary to set out a lengthy passage from her final address.
[PROSECUTOR]: Ladies and gentlemen, before lunch I was telling you about the evidence of the STAR Force officers and some suggestions that the prosecution has as to what you might think of their evidence. But in considering all of that, you might be wondering what to make of Linda Williams and how her evidence fits in with all of this.
What I suggest about Linda Williams is that there are really three options for you to consider. The first option is that what she told you is what happened; that is, the accused was arrested in the front yard of No.8 and that she saw a kicking and a punching motion towards him, although you will remember she did not suggest that she saw any direct contact between police and the accused at that point.
The second option is that she was perhaps mistaken about what she saw and that what she saw was perhaps, actually, the apprehension of the father of the accused. After all, she said that when she looked out the window, she saw the accused face down.
So perhaps she was mistaken about who she saw on the ground and, indeed, what she saw happening to that person. Perhaps it was the accused's father she saw because it will be open to you to find that he was, perhaps, much closer or, indeed, in the front yard of No.8, if not still on it when he was being dealt with by, who you might think, was Brevet Sergeant Wheeler.
The third option is that perhaps due to the nature of the relationship with the accused - she told you her daughter was still in a relationship with him - she was somewhat biased in what she told you about that evening and perhaps not even being entirely truthful with you about it.
Might not her relationship with the accused have clouded what she told you about that night? After all she, like any witness in this trial giving evidence, was giving evidence from a particular perspective and that was, essentially, in the position of the mother-in-law of the accused.
So, just looking at option No.3 for a moment, ask yourselves what did you make of Linda Williams as a witness? Do you think, perhaps, that she did come to court with a little bias in favour of the accused? I will give you some examples.
You will recall her evidence about the appearance of the accused. In particular, you might think she was adamant that she had never seen him with more than a little bit of growth on his face, maybe four to five days, and that he was usually clean-shaven. She told you that prior to March of 2007 he had been in a relationship with her daughter for approximately three years. Ask yourselves, ladies and gentlemen, how does that sit with the photograph on the accused's driver's licence, which is agreed was taken in January of 2006? You can see that photograph in the photographs that you have and the original will be available to you. But in that photograph, you might think the accused clearly has quite a substantial amount of facial hair. So, you might think that there is some proof there that perhaps she has been a little bit biased about what she says. It is a matter for you.
Another example might be what she told you about coming out of her house, because she told you this about when she came out of her house that night: 'I noticed when I came out the driveway, Rick was handcuffed ... and he was screaming out to his dad too.'
You might remember when the accused was first sitting in the police car, on the video after the handover by STAR Force, he was asked about people inside the house by Senior Constable Mundy, and he was asked this question 'Is Linda asleep now?', and his answer was 'Yeah' and then there was some discussion about where her bedroom was, you might remember from that video. So, ladies and gentlemen, ask yourselves: how do those two pieces of evidence fit together? Linda Williams would have you believe she saw the tail-end of this episode, that she was out the front and the accused was saying 'Come on now, you have got a witness here'. The accused told police she was asleep, not out the front of the house, but asleep.
You might think that that would have been the case because you might think that there had to have been a delay, however brief, in the arrest team arousing the people in the house, if that's what happened and those people, including the number of small children who had to be woken up, actually coming outside.
So, ladies and gentlemen, if you think that perhaps Ms Williams has been a little biased or maybe even not entirely honest on some of those topics, how does that affect your opinion of her, about what she says she saw from the front window or even her evidence about the hair clippers outside her house that she told you were used to shave the children's hair? Might you not have a doubt about some of those matters? It is a matter for you, but I suggest that you might.
To go back a step, any potential unfairness in counsel’s treatment of her own witness arose here because the prosecutor called a witness whose evidence was contrary to the prosecution case and was, ultimately, adjudged by the prosecutor to be unreliable. It seems likely the prosecutor considered that the obligation upon her in terms of Whitehorn v The Queen (1983) 152 CLR 657 and R v Apostilides (1984) 154 CLR 563 dictated that the prosecution call Ms Williams. I have my doubts about that view. As I see it, the ends of justice would have been better served had Ms Williams had been left to be called, if at all, by the defence. Then the jury might have seen a robust testing of her evidence. However, that is now water under the bridge and a matter incidental to this argument.
There is no doubt that a party can, at any time, urge a jury to accept the evidence of one of its witnesses in preference to another where the evidence conflicts: Wills v South Australian Railways Commissioner & The New Zealand Insurance Co Ltd (1973) 5 SASR 74 at 85 per Bray CJ; R v Welden (1977) 16 SASR 421 at 427 per Bray CJ, at 435 per Bright J, at 442-3 per Zelling J. Here the prosecutor went further.
Since Whitehorn and Apostilides were decided, the prosecuting authorities in this state have demonstrated an attitude more amenable to calling a witness at the request of the defence, even where it is apprehended that the witness will be unfavourable or adverse. Prior to the High Court’s decisions in those cases, the attitude was that reflected by the decision In the Matter of a Petition by Frits Van Beelen (1974) 9 SASR 163 at 248-9. There, the Court of Criminal Appeal, consisting of Walters, Wells and Jacobs JJ held that the decision of prosecuting counsel as to which witnesses would be called as part of the prosecution case was “circumscribed” by these rules:
1.Where the Crown calls a witness who did not give evidence at the committal proceedings, the accused should be given reasonable notice of the Crown’s intention to call that witness and should be furnished with a proof of the witness’s proposed evidence (R v Greenslade (1870) 11 Cox CC 412; R v Devenish [1969] VR 737.
2.Where the Crown does not propose to call a witness who gave evidence on the committal proceedings, it should, unless there are strong and satisfactory reasons to the contrary, have the witness available in court so that the counsel may have the opportunity of calling him, as his own witness, if he so wishes (R v Woodhead (1847) 2 C & K 520 (175 ER 216); R v Cassidy (1858) 1 F & F 79 (175 ER 634).
3.Where the Crown has in its possession the statement of a person who can give material evidence, but decides not to call him, it must make him available as a witness for the defence, but need not supply the defence with a copy of the statement taken (R v Bryant and Dixon (1946) 31 Cr APP R 146).
4.Where the Crown has in its possession a statement of credible witness who can speak of material facts “which tend to show the prisoner to be innocent”, it must either call that witness or make his statement available to the defence (Dallison v Caffery [1965] 1 QB 348 per Lord Denning MR at p. 369).
That is, a witness seen to be adverse would be made available for the defence to call if it wished, but would not be called by the prosecution. The obligations cast by the High Court cases are more onerous.
The prosecuting authorities now – appropriately – take it upon themselves to call all witnesses with relevant evidence to give, unless there is some cogent reason for refusing to do so. The corollary of imposing greater burdens on prosecuting counsel in calling witnesses whose evidence does not favour the Crown case is that prosecuting counsel must be given greater latitude to criticise such evidence. Otherwise, the jury remains wholly without assistance in its evaluation of that evidence. Where the contemporary approach leaves prosecuting counsel calling witnesses whose interests are more closely aligned with the defence, or whose sympathies lie there, counsel should be, in my view, permitted commensurately more freedom to deal robustly with such evidence in their final addresses. Otherwise an insistence by defence counsel that a particular witness must be called by the prosecution could lead to unfavourable evidence being neither the subject of cross-examination nor of adverse comment. By such a train of events the adversarial role of Crown counsel would be emasculated, in a way contrary to the interests of justice.
It should be remembered that the most significant retardant upon unfair or unsupported submissions made by any counsel is the innate good sense, fairness and objectivity of the jury. Criticism of a witness based solely on that witness’s evidence not falling within the Crown case theory is doomed to be rejected by the jury.
Here, the prosecutor fairly and reasonably put to the jury three possible ways in which it might view Ms Williams’ evidence. There was not undue emphasis on any of those options. This approach was, in my view, perfectly proper. There was nothing unfair to the appellant in the way with which the evidence was dealt. On the contrary, having had the benefit of Ms Williams’ evidence being presented to the jury without any close cross-examination, the appellant can hardly complain of an objective summary of the ways in which the jury might view it.
Then it is said that the failure of the prosecution to challenge the evidence at the time it was given, as a prelude to the submissions made to the jury later, was unfair to the witness. The submission seems to amount to an extrapolation of the Browne v Dunn principle. As Gray J has noted, this topic of the extent to which a party might challenge his own witness is dealt with extensively in R v Macfie (No 2) (2004) 11 VR 215 by Eames JA, with whom Callaway JA agreed. Eames JA related that before the Court of Appeal it was suggested by counsel for the appellant that the prosecutor should have put to the witness he planned to later discredit, the question:
If it was suggested to you that you condoned the commission of these offences, what would you say to that?
Like Eames JA I consider that such a question would have been objectionable. I note that s 34 Evidence Act 1958 (Vic) as it then stood – which Eames JA observed prevented a party from impeaching his own witness – was in almost identical terms to our s 27 Evidence Act 1929 (SA). The New South Wales cases referred to by Eames JA and distinguished by him were decided in a relevantly different statutory context.
I have wondered whether it would have been permissible in the instant case, and perhaps desirable, for the prosecutor to ask Ms Williams:
You have said that you could not see the face of the arrested man; on what basis then do you say it was the appellant you saw arrested, as opposed to his father?
or
How can you be sure that it was the appellant and not his father that you saw being arrested?
In my view the first question would have been permissible; the second would probably have amounted to cross-examination.
However, as Gray J has observed, it is not fairness to the witness that is in issue. For the reasons I referred to earlier, I consider the prosecutor must be allowed to deal with adverse evidence in a way that advances the interests of justice.
In relation to the ground of appeal asserting that the verdicts are unsafe and unsatisfactory, I agree with the reasons of both of the other members of the Court.
The appeal should be dismissed.
WHITE J: The circumstances giving rise to this appeal are set out in the reasons of Gray J.
The appeal involves the following issues:
(1)Did the ruling of the trial Judge upholding a claim of public interest immunity in relation to a portion of a police officer’s notes give rise to a miscarriage of justice?
(2)Did the exclusion of the appellant and his counsel from the courtroom during part of the Court’s consideration of the claim for public interest immunity give rise to a miscarriage of justice?
(3)Did aspects of the prosecution summing up involve errors which were not corrected by the trial Judge thereby giving rise to a miscarriage of justice?
(4)Are the verdicts unsafe, unsatisfactory and against the weight of the evidence?
The Prosecution Case
As neither of the victims was able to make an identification of the robber from the photographic arrays provided to them, the prosecution case was wholly circumstantial. In my opinion, it was a strong circumstantial case. The conclusion that the appellant was the robber was supported by the following:
(i)Jewellery taken in the robbery was found at the home of the appellant’s girlfriend’s mother (Ms Williams) which was also the place at which the appellant was arrested;
(ii)The appellant had distinctive facial scarring as well as injuries to his face which were consistent with the scarring and injuries which the victims observed on the robber;
(iii)One victim described the robber as leaving their home in a distinctive green Holden Commodore. There was evidence that a green Commodore fitting that description had been lent to the appellant on the day before the robbery; that car was at the house at Burton at which the appellant was arrested; and the appellant had possession of its keys;
(iv)In a telephone call from the Adelaide Remand Centre, the appellant made a statement implying that he had placed the jewellery at Ms Williams’ house;
(v)The victims had described the robber as having a beard. Although the appellant was clean shaven when arrested approximately 10 and a half hours after the robbery, the police found an electric shaver and shaved hair on the floor of the verandah at the rear of Ms Williams’ house, giving rise to the possibility that the appellant had recently removed his beard. In addition to explaining the absence of a beard at the time of his arrest, this evidence also gave rise to an inference that the appellant may have tried to alter his appearance;
(vi)The victims described the robber as wearing a brightly coloured worker’s vest. The appellant had an association with properties at which vests of a generally similar, but not identical, kind were used;
(vii)Gunshot residue was located on the steering wheel, handbrake and gearstick of the Holden Commodore, and also on the appellant’s hands (although the residue on the appellant’s hands was also consistent with a transfer from the hands of police officers during the course of his arrest).
At the trial, the appellant sought to undermine or neutralise these inferences in a variety of ways. With the exception of the complaint that the jury verdicts are unsafe and unsatisfactory, each of the grounds of appeal relates in one way or another to the evidence that the appellant had facial scarring and injuries consistent with those of the robber observed by the victims.
The robbery occurred at approximately 1.00pm on 25 March 2007. The appellant was arrested by STAR Group officers at approximately 11.30pm that same day. He was then handed over to the police investigating the offences.
The appellant did not give evidence at his trial but videotapes of his conversations with the investigating officers, and of his interview by them, were tendered. The videotapes indicated that the appellant claimed repeatedly that, during the arrest, he had been beaten by the STAR Group officers resulting in cuts and bleeding on his face. In addition, Ms Williams, the appellant’s girlfriend’s mother, gave evidence that she had seen part of his arrest. Ms Williams said that she saw the appellant lying face down in the front garden of her home with one police officer pressing his knee into the appellant’s back. She also said that she saw a second police officer making a punching movement in the direction of the appellant and a third approach and then kick him.
Trial counsel for the appellant referred to this evidence in his submission to the jury that the appellant may well have suffered the injuries to his face at the time of his arrest, suggesting in consequence that the appellant could not have been the robber observed by the two victims.
Photographs of the appellant’s face taken approximately three and a half hours after his arrest indicate both scarring and facial injuries, the latter of which did not seem to have been recently caused, i.e., within the last three or four hours before the photographs were taken.
The prosecution witnesses denied that there had been any beating of the appellant at the time of his arrest. In addition, several gave evidence that the arrest took place in a different position from that described by Ms Williams, with the effect that she could not have observed any part of the arrest from her bedroom window. However, one police officer (Mr Down) gave evidence that the appellant was arrested in a place which was generally consistent with that described by Ms Williams.
In her closing address to the jury, the prosecution suggested that Ms Williams may have mistakenly thought it was the appellant who she saw being arrested and that she may in fact have observed the arrest of the appellant’s father, who was arrested at the same time. The prosecutor made the following submission concerning Ms Williams’ evidence:
What I suggest about [Ms] Williams is that there are really three options for you to consider. The first option is that what she told you is what happened; that is, the accused was arrested in the front yard of no 8 and that she saw a kicking and a punching motion towards him, although you will remember she did not suggest that she saw any direct contact between police and the accused at that point.
The second option is that she was perhaps mistaken about what she saw and that what she saw was perhaps, actually, the apprehension of the father of the accused. After all, she saw that when she looked out the window, she saw the accused face down. So perhaps she was mistaken about who she saw on the ground and, indeed, what she saw happening to that person. Perhaps it was the accused’s father she saw…
The third option is that perhaps due to the nature of the relationship with the accused – she told you her daughter was still in a relationship with him – she was somewhat biased in what she told you about that evening and perhaps not even being entirely truthful with you about it. Might not her relationship with the accused have clouded what she told you about that night? After all she, like any witness in this trial giving evidence, was giving evidence from a particular perspective and that was essentially in the position of the mother‑in‑law of the accused.
In relation to Mr Down’s evidence, the prosecutor suggested to the jury that they may consider the evidence of other police officers to the effect that the arrest did not take place in front Ms Williams’ house to be more reliable, and that Mr Down too may have described the arrest of the father, rather than that of the appellant.
The Ruling on the Claim for Public Interest Immunity
Although initially the prosecution position at trial was that neither the nature of the information giving rise to the claim for public interest immunity nor the actual content of the material in Sgt Devey’s notes should be disclosed, that position changed. The prosecution ultimately did not object to the appellant being informed that the claim for public interest immunity was made on the basis that disclosure would reveal the identity of an informer. It maintained its objection however to the disclosure of any information which would reveal the identity of the particular informer involved.
On the appeal, the appellant argued that knowledge of the identity of the identity of the informer was important to the jury’s consideration of the prosecutor’s submission that each of Ms Williams and Mr Down may, in fact have observed the arrest of the appellant’s father, and not that of the appellant himself. As I understood it, the submission was that knowledge of the identity of the informer would, in the event that the informer was the appellant’s father (which the appellant considered to be possible), have assisted the jury in considering whether Ms Williams could have confused the appellant with his father and in considering whether or not it was possible or likely that the STAR Group officers would have dealt roughly with a person who had provided assistance to the police. The improbability of that occurring made it unlikely, it was submitted, that Ms Williams could have been mistaken in stating that it was the appellant whom she saw being arrested.
The principles concerning a claim for public interest immunity in relation to the identity of an informer are set out in the reasons of Gray J, and it is not necessary to repeat them. In a criminal trial, a court is required to engage in a balancing exercise, that is, balancing on the one hand the public interest in protecting the anonymity of informers in order to preserve the prospect of information being provided to the police on the basis of an express or implied condition of confidentiality and, on the other, the public interest in avoiding substantial prejudice to defendants by preventing them having access to material which may be of assistance to them in defending criminal charges. In the present case, it was not suggested that the trial Judge had misunderstood or misapplied the relevant principles. Rather, the thrust of the appellant’s submissions on the appeal was that the Judge should have reached a different conclusion in the balancing exercise.
In the argument before the Judge, trial counsel for the appellant argued that knowledge of the identity of the informer would allow the defence to investigate the possibility that the appellant had been set up by that informer, or that the informer intended that the appellant should be held responsible for offences which had in fact been committed by the informer.
On the basis of the evidence and submissions which he heard in the absence of the appellant and his trial counsel, the Judge considered that this was not a line of enquiry which could be usefully pursued by the appellant. I did not understand the appellant to contend on appeal that that conclusion was wrong. Instead, on the appeal, the appellant relied on the matters identified above as indicating the prejudice to him. He submitted that the Judge’s ruling concerning public interest immunity had the effect that the jury had to consider the prosecution submissions as to the ways in which Ms Williams’ evidence could be explained without reference to all of the facts.
There is some incongruity in the appellant now challenging the Judge’s ruling by reference to matters which occurred in the trial well after the ruling had been made, when the appellant did not himself seek to have the ruling reviewed in the light of those changed circumstances. However, that matter can be put to one side.
In considering whether the balance was struck appropriately, it is necessary to keep the real issues in mind. The appellant contended, in effect, that he had been assaulted by the STAR Group officers, and that that assault had caused the injuries to his face which were regarded as consistent with those observed by the victims. The police denied that any such assault had occurred. Putting to one side the burden of proof, the issue to be considered by the jury accordingly was whether there had been an assault resulting in facial injuries: and not whether the subject of the assault had been the appellant or his father. It was not part of the prosecution case that Ms Williams may have observed an assault on the father, rather than on the appellant himself. Nor was it suggested by the appellant that his father had also been assaulted. As already noted, his argument was that it was unlikely that the police would have assaulted his father, if his father was the informer.
Viewed in that way, it can be seen that it was not necessary for the prosecutor to introduce the possibility that Ms Williams had observed the arrest of the father rather than the arrest of the appellant. Ms Williams’ evidence could not be explained on that basis, that is, on the basis that the police ill treatment which she recounted was to the father and not to the appellant. The effect of the prosecutor’s submission was therefore to introduce a theoretical possibility only, and it is likely that the jury would have recognised it as such. The introduction of that theoretical possibility cannot now be used to impugn the Judge’s ruling concerning public interest immunity.
When regard is had to the real issue which I have identified, it is apparent, in my opinion, that the Judge carried out the balancing exercise appropriately. Knowledge of the identity of the informer could not have assisted the jury in its consideration of whether the appellant had been assaulted by the arresting STAR Group officers in the way for which he contended. The identity of the informer had no bearing on that issue at all.
Similarly, I consider that knowledge of the identity of the informer could not have had any bearing on the question of whether Ms Williams and Mr Down observed the arrest of the appellant or of the father. Any issue about those matters had to be resolved by reference to the evidence concerning the two arrests, and by reference to the evidence concerning their respective ages, physiques, and facial appearances. Knowledge of the identity of the informer did not bear on any of those matters.
In these circumstances, I do not consider that it can be said that the non‑disclosure of the full notes of Sgt Devey, including the identity of the informer, could result in substantial prejudice to the appellant in the conduct of his defence. Accordingly, I consider that the Judge’s ruling concerning public interest immunity was correct. This ground of appeal fails.
The Exclusion of the Appellant from the Courtroom
The appellant contended that the trial Judge had erred in excluding him and his counsel from the courtroom while he heard evidence and submissions concerning the prosecution claim of public interest immunity, and ruled upon that claim.
The course of events was as follows. The trial commenced on Tuesday, 9 June 2009. Sgt Devey commenced his evidence at just after noon on Monday, 15 June 2009. At the commencement of his evidence-in-chief, the prosecutor set out to establish a basis upon which Sgt Devey could be granted permission to refer to notes for the purpose of refreshing his memory. When the request for permission was made, defence counsel asked to inspect the notes. Although a masked version of the notes had previously been provided to him, counsel wished to look at the original notes.
At that point, the prosecutor asked the Judge for the opportunity to raise a matter in the absence of the jury, and the jury left the courtroom (12.18 pm). The prosecutor then told the Judge that there was an entry in the notes which was the subject of public interest immunity; that that portion had been “blanked out” in the copy of the notes given both to her and to defence counsel; and suggested that the claim for public interest immunity should be addressed before the original notes were made available to defence counsel for inspection.
At that stage, defence counsel was more interested in ensuring that the copy of the notes given to him was complete, even if a portion of them was masked. He told the Judge “I have no interest in the public interest immunity aspect of it”. Nevertheless, once the extent of the notes had been clarified, the Judge asked defence counsel if he wished him (the Judge) to inspect the note book himself, and counsel responded in the affirmative. While the Judge was inspecting the original notebook, defence counsel pointed out that the portion said to be subject to public interest immunity was still legible in the masked copy provided to him. Without revealing the contents, he then challenged the claim for public interest immunity. Some discussion then occurred as to how the public interest immunity claim should be determined, during the course of which Sgt Devey was asked to leave the courtroom and did so.
The discussion then continued. The Judge referred the parties to the headnote in R v Davis[39] in which the Court of Appeal had considered circumstances in which a claim of public interest immunity could be determined at a hearing from which one party was excluded. I will refer to Davis in more detail shortly. The Judge then suggested to the prosecutor that she should identify:
the category of information into which [the] blanked out sections of the notes fall and then decide whether the category itself is so sensitive that you would want to proceed ex parte or whether the category itself can just be made the subject of submissions.
The Judge contemplated that defence counsel would have the right to make submissions if the claim was in the second category.
[39] (1993) 1 WLR 613.
The hearing then adjourned (at 12.42 pm) and resumed (at 2.20 pm). The prosecutor then told the Judge that to reveal the category to which the claim for public interest immunity applied would defeat the purpose of the claim and in those circumstances asked the Judge to hear submissions on the topic ex parte.
Without hearing from defence counsel the Judge said “I think that is the appropriate course of action” and he asked defence counsel and his client to withdraw. Defence counsel then asked to be heard. He reminded the Judge that Davis indicated that it was on only very rare occasions that the hearing should take place in the absence of one party; indicated his willingness to give any appropriate undertaking required by the Court to the effect that he would not reveal what took place during a hearing at which he was present; and indicated that he had no objection to his client not being present. The Judge responded by saying that the situation seemed to be one in which the mere revelation of the category of claim for public interest immunity might be injurious to the public interest. He asked defence counsel and the appellant to withdraw, and they did so.
In the absence of the appellant and his counsel, the prosecutor told the Judge that she herself had still not seen the original of the notes as “it was considered not appropriate for [her] to do that”. The prosecutor told the Judge that the passage in the notes for which immunity was claimed indicated that the Police had received information from an informant and, although not identifying the informant, provided sufficient information from which that identity could be inferred. The Judge enquired whether the identity of the informant could in any way assist the defence. The prosecutor thought not. After some further discussion, the prosecutor agreed with the Judge’s suggestion that defence counsel be told that the notes indicated that the Police had received information from an informant and be asked if he wanted to take the matter any further. Defence counsel (but not the appellant) was then invited back into the courtroom (at 2.29 pm).
The Judge told defence counsel that he would hear submissions from him but only on the basis that he gave an undertaking not to reveal anything which was said to the accused or to anyone else. Defence counsel gave that undertaking and, at the Judge’s suggestion, confirmed that it was obvious from the written declarations that the Police investigating the offences had received information from some source. He submitted that the identity of the informant was a relevant matter because of the possibility that the accused had been “set-up” by that informer and submitted further that the identity of the informer at least gave rise to a relevant line of enquiry. The Judge then told defence counsel that he wished to “proceed ex parte again for the moment”. Defence counsel left the courtroom (2.33pm).
In his absence, the prosecutor said:
In my submission the overriding principle of the protection of the informant and the protection of the claim for public interest immunity should override in the balancing act any possible relevance to any line of defence that would exist with respect to the matter.
The Judge said that he would have to be given more information before he could make “a properly informed ruling”. The prosecutor drew the Judge’s attention to the fact that when spoken to by the police shortly after his apprehension, the appellant had adverted to the possibility of an informer and provided a copy of the accused’s record of interview to the Judge to evidence that fact. The following interchange then occurred:
“Prosecutor: … In my submission the claim is pursued and if your Honour is to consider it further, then in my submission either an affidavit will need to be provided with respect to the matter or alternatively I can call some evidence on oath from a police officer on the topic.
His Honour: We could proceed quicker if I took the evidence in camera.
Prosecutor:Yes.
His Honour: How quickly can the police officer be available?
Prosecutor:The relevant officer is outside of the courtroom. I don’t propose to call the officer who made the notes, but the investigating officer who is aware of the content of those notes and more aware of the general situation is available now if your Honour wishes to hear evidence from him.
His Honour: How long do you think he would take?
Prosecutor:Only I imagine five minutes or so.
His Honour: Alright call him.”
The prosecutor then called Detective Senior Constable Mundy, the investigating police officer with respect to the prosecution of the appellant. Defence counsel was not given any further opportunity at this time to comment upon the procedures adopted by the Judge with respect to the taking of evidence concerning the claim for public interest immunity.
Senior Constable Mundy then gave some short evidence confirming the involvement of an informant and indicated that one passage in the notes would enable the identity of that informant to be inferred. Much of his evidence was of a generalised kind, and some of it was hearsay.
At the completion of his evidence, the Judge raised with the prosecutor the possibility that the informant was casting the blame for the offences on to the appellant and suggested that in that circumstance there was “at least an argument that disclosure should be permitted”. The prosecutor told the Judge that she would lead evidence as to the descriptions of all the persons who were at the house at Burton at the time of the appellant’s apprehension and said that it would be clear from those descriptions that none of them could have been the person described by the two victims. In this way, she contended that knowledge of the identity of the informant could not assist in the defence in an argument that the informant was the true culprit, who was, by assistance to the Police, seeking to cast the blame onto the appellant.
The Judge then said that he would uphold the claim for public interest immunity; defence counsel and the accused re-entered the courtroom (at 2.57pm); and the Judge told defence counsel that he was upholding the claim for public interest immunity but indicated that he would be monitoring the evidence as it progressed. Defence counsel did not seek to be heard further on the topic at that stage.
In summary, the prosecution asked that the claim of public interest immunity in respect of the masked portion of Sgt Devey’s notes be heard and determined in the absence of the appellant and his counsel; the Judge acceded to that request and, apart from hearing from defence counsel (in the absence of the appellant) as to how the identification of the informer may be relevant to the defence case, determined the claim for public interest immunity while the appellant and his counsel were excluded from the courtroom. It was the Judge who suggested that he hear the evidence of Mr Mundy “in camera” and he proceeded that way because it was “quicker” to do so, rather than adjourning to allow the preparation of affidavits.
Many of the authorities concerning the effect of a trial proceeding (in whole or in part) in the absence of an accused were reviewed by Duggan J (with whom Doyle CJ and Vanstone J agreed on this point) in R v Collie.[40] That makes it unnecessary to refer to the authorities in detail. The following propositions can be stated:
1.“… there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case against him and have the opportunity, having heard it, of answering it.”[41] In Gazepis v Police, Doyle CJ regarded the entitlement of defendants to be present in court during their trial, if they so wish, to be “a fundamental right”.[42] In R v Preston, Lord Mustill described hearings in private as objectionable in principle and in practice saying that it is “of the essence of an adversarial process that the accused, as one of the opposing parties, should hear what his opponent has to say and how he says it, so that he can properly frame his response”.[43] Accordingly, as a general rule, an accused person must be present throughout his or her trial.[44]
2.However, there are recognised exceptions to the general rule, including circumstances of misbehaviour by the accused or voluntary absence as in the case of absconding.[45]
3.Courts do have a discretion to be exercised in all the circumstances of the particular case as to whether to continue with the trial, to adjourn, or to discharge the jury if the accused is unable to attend.[46]
4.However, the discretion to proceed with the trial in the absence of an accused is to be exercised with great caution and with close regard to the overall fairness of the proceedings.[47]
5.Proceeding in the absence of an accused may constitute a serious irregularity in the course of a trial.[48] Nevertheless, such an irregularity may not vitiate the trial and may not, in an appropriate case, preclude the application of the proviso contained in s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”).[49]
[40] [2005] SASC 148; (2005) 91 SASR 339.
[41] R v Lee Kun [1916] 1 KB 337 at 341. See also Ebatarinja v Deland [1998] HCA 62 at [26]; (1998) 194 CLR 444 at 454.
[42] (1997) 70 SASR 121 at 127.
[43] [1994] 2 AC 130 at 153.
[44] R v Collie [2005] SASC 148 at [33]; (2005) 91 SASR 339 at 347.
[45] Ibid.
[46] R v Jones [2003] 1 AC 1 at 10.
[47] R v Jones [2003] 1 AC 1 at 10]; R v Collie [2005] SASC 148 at [33]; (2005) 91 SASR 339 at 347.
[48] R v Preston (1994) 2 AC 130.
[49] R v Collie [2005] SASC 148 at [34]-[38]; (2005) 91 SASR 339 at 347-349; Thomas v The Queen (No 2) [1960] WAR 129 at 136.
In the present case, in deciding to hear and determine the claim for public interest immunity in the absence of the appellant, the trial Judge adopted the English approach outlined in R v Davis.[50] In that case, the Court of Appeal indicated that it was appropriate for the prosecution to apply ex parte for a ruling on public interest immunity when it considered that a disclosure of even the category of material in question would have the effect of revealing that which was sought to be kept confidential. So far as I am aware, there has not been any endorsement of the R v Davis approach in Australia. Of course, there may be cases in which that approach may be appropriate but as the judgment in R v Davis itself recognises, such cases are exceptional.
[50] (1993) 1 WLR 613.
In my opinion, the present case can hardly be described as exceptional. It is difficult to see why the prosecution was reluctant to disclose even the basis of its claim for immunity. As the Judge pointed out during the hearing before him, it was obvious from the depositions that the Police had received information from some source, and the appellant himself had suspected the involvement of an informer. Shortly after his arrest, the appellant engaged in some speculation as to the identity of the informer.
In many cases, claims of public interest immunity are supported by an affidavit in which the deponent identifies both the character of the information sought to be protected, and sets out the basis for the claim in the particular case. On my understanding, it is commonplace when a claim for public interest immunity is made for such affidavits to be handed to the trial Judge while the opposing party (in a criminal trial, the accused) and his or her counsel remain in court. When this occurs, the opposing parties are usually provided with copies of affidavits from which the portions for which privilege is claimed have been redacted or masked. Counsel are often invited to make such submissions as they can, in the absence of access to all of the material. This Court referred to this method of proceeding in R v McKelliff[51] without any indication of disapproval. One advantage of this course is that, ordinarily, accused persons and their counsel have the opportunity to read such portions of the affidavit which have not been masked and hearing the communication between the Judge and the prosecutor. In this way, the extent to which accused persons and their counsel are prevented from participating in the trial is kept to a minimum. A trial Judge is not required to permit the opposing party to cross-examine on the affidavit, and permission to cross-examine in such circumstances will usually be refused.[52]
[51] [2004] SASC 63; (2004) 87 SASR 476.
[52] Young v Quinn (1985) 4 FCR 483 at 485-6; Jackson v Wells (1985) 5 FCR 296 at 302; R v McKelliff [2004] SASC 63; (2004) 87 SASR 476 at [51]-[52], 486-7.
In my opinion, such an approach should have been adopted in the present case. It was unfortunate that the issue had not been addressed before the empanelment of the jury, on an application by either the prosecutor or the appellant. However, the fact that it had not been addressed earlier did not constitute an exceptional circumstance entitling the Judge to deny the appellant his “fundamental right” to remain in court during the whole of his trial. Accused persons should not be excluded from the courtroom during a trial simply because the Court may be able to proceed “quicker” if they do not remain. It is understandable that the Judge wished to keep the trial moving, and in particular, wished to minimise the time during which the jury was kept waiting. However, this could have been achieved by other means, for example, by the interposition of another witness. Even if the trial did have to be adjourned, it is likely to have resulted in the loss of no more than two hours hearing time.
The exclusion of litigants from the courtroom during part of their trial while a particular issue is addressed is different both in principle and in practical effect from the situation in which the litigants remain but are not privy to the communications made in writing to the Judge by the opposing party. It is not appropriate, in my opinion, to equate these two situations. In the former, the litigants are precluded altogether from listening to, and observing, the communications (both verbal and non-verbal) between the Judge and the opposing party. In the latter situation, the litigants are denied access only to the written material. They can observe all the communications, including the manner and tone of the communications. If additional materials are provided to the Judge, they will know of it. The present case provides an example in that respect because, during the absence of the accused and his counsel, the prosecutor provided the Judge with an underlined copy of the written record of the appellant’s interview by the police. The appellant was not told later that that had occurred. I am not referring to this to suggest that any harm was done, or that the course adopted was inappropriate, but to indicate how easily there can be communications between the Judge and one party about which the excluded party remains unaware.
Excluded litigants and their counsel can of course expect that trial judge’s and opposing counsel will limit the communications during the period of exclusion to the matter which justified the exclusion. However, litigants in particular should not be put in a position of having to “trust” that this is so. They should be able to see and hear for themselves that this is the case. The requirement that claims for public interest immunity be property articulated in affidavit form does involve some compromise of the litigant’s ability to see and hear all the communications, but that is necessarily so if courts are to avoid the procedure adopted for the determination of a claim for privilege resulting by itself in the loss of the claimed confidentiality.
In my opinion, the exclusion of the appellant and his counsel from the courtroom while the Judge determined the claim for public interest immunity did amount to a significant irregularity in the conduct of the trial. That is not to say however that the irregularity has caused such a miscarriage of justice that the appeal should be allowed. It has been said that it is not every departure from the rules which permeate judicial procedure which gives rise to a miscarriage of justice requiring the setting aside of verdicts in the absence of a finding that a different result would have been obtained had the irregularity not occurred.[53]
[53] Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [68]-[70], 379-80.
In the present case, a number of features suggest that the proviso in s 353(1) of the CLCA should be applied. The first is that, in the view which I take, the Judge’s ruling concerning public interest immunity was correct. Secondly, the appellant was excluded from the courtroom for only a very short time. Thirdly, the appellant’s trial counsel had indicated that he did not object to the appellant being excluded, although this was conditional upon trial counsel himself being permitted to remain. Fourthly, even if the appellant had remained and the submissions made by reference to affidavits provided to the Judge, he would not, in any event, have been privy to all the material. Finally, as already noted, I consider that the prosecution presented a strong circumstantial case and there is no reason to suppose that the jury verdicts may have been different if the appellant and his counsel had not been excluded from the courtroom. In summary, I am satisfied that the appellant’s exclusion from the courtroom, although inappropriate, has not resulted in a substantial miscarriage of justice and accordingly I would apply the proviso.
This means that this ground of appeal fails.
The Prosecution Closing Addresses
The appellant submitted that the Judge should have directed the jury that the suggestion made by the prosecutor in her closing submission to the effect that Mr Down and Ms Williams may have observed the arrest of the appellant’s father, and not of the appellant himself, was not supported by the evidence.
Ms Williams’ evidence was that it was the appellant whom she saw being held on the ground by the police. She was well familiar with his appearance, having known him for some time. It was not suggested to Ms Williams that she was mistaken, nor was she asked to describe the features of the person whom she saw with a view to establishing that that person was not the appellant.
Mr Down had an obstructed view of the rest of the males who emerged from Ms Williams’ house. Apart from saying that one of the two men arrested had a heavier build than the other Mr Down did not provide any other information about the man whose arrest he observed, so as to provide a basis upon which the jury could distinguish that man from the appellant, or from the appellant’s father. Most of Mr Down’s evidence proceeded on the basis that the man whose arrest he observed was the appellant. Mr Down also said that he recognised the police officers involved in the arrest which he observed, and other evidence indicated that they were the officers who arrested the appellant. However, Mr Down did say that he could not recognise either of the two people who emerged from the house and who were arrested, and that he could not say which one was where. In his cross-examination Mr Down gave the following evidence:
Q:So the other male who was not far behind, would that have been the accused, the person who was eventually apprehended by the STAR Force officers.
A:To be honest I can’t remember. I didn’t even see both of them clearly that night so I couldn’t even recognise them.
The Judge left the issue of who Mr Down saw being arrested to the jury. After reading lengthy extracts from the evidence of several of the police officers, the Judge said:
Ladies and gentlemen, as you can see, many of the questions which were put to [Mr Down] by [the prosecutor] directed his attention to the accused and it will be for you to say whether [Mr Down] might have thought that the man he could see, when he looked under the car, was the accused or whether it might, in fact, have been the accused’s father who he could see when he looked under the car.
So, ladies and gentlemen, it will thus be for you to say whether there is, in fact, any evidence which has the capacity to support [the prosecutor’s] contention that the man [Mr Down] saw when he looked under the car was, in fact, the accused’s father or not.
In relation to Ms Williams, the Judge did not give the jury any direction concerning the prosecution submission concerning her evidence.
On the appeal, the appellant also complained of the prosecution submission that Ms Williams’ evidence may have been affected by bias, arising out of her relationship with the appellant.
In support of his submission that it was not appropriate for the prosecutor to impugn the credibility of a witness called by her, the appellant referred to the New South Wales decisions of R v Kennedy[54] and R v Teasdale.[55] In each of those decisions, appeals were upheld on account of submissions made by the prosecution to the jury which impugned the credibility of prosecution witnesses. In Kennedy, Studdert J (with whom Heydon JA and Greg James J agreed) said:
There can be no question but that the Crown prosecutor had a responsibility to present the Crown case properly and fairly. Unfortunately what the Crown prosecutor did in relation to this witness departed from proper and fair presentation. Fairness not only to the witness but to the appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to the jury. Since the Crown prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made.[56]
[54] [2000] NSWCCA 487; (2000) 118 A Crim R 34.
[55] [2004] NSWCCA 91; (2004) 145 A Crim R 345.
[56] [2000] NSWCCA 487; (2000) 118 A Crim R 34 at [36], 41.
However, later decisions in this State and in Victoria have distinguished Kennedy and Teasdale on the basis that the decisions in those cases were influenced by the presence of s 38 in the Evidence Act 1995 (NSW). In R v Colquhoun,[57] David J (with whom Vanstone and Anderson JJ agreed) distinguished Kennedy and Teasdale and said:
I can see no reason why a prosecutor could not make submissions adverse to her own witness where that witness’ evidence conflicted with other parts of the prosecution case.[58]
[57] [2009] SASC 138.
[58] [2009] SASC 138 at [22].
In R v Macfie (No 2),[59] Eames J reviewed the authorities in some detail and concluded that, at least in those cases in which the criticism of the prosecution witnesses is peripheral to the prosecution case, and the prosecutor does not rely upon the suggested dishonesty or lack of credibility of the prosecution witnesses as proof of the Crown case, the credibility of those witnesses may properly be impugned in closing submissions. In many cases, the impugning of the evidence of a prosecution witness will be necessary and appropriate in order that inconsistencies between the evidence of prosecution witnesses may be resolved.
[59] [2004] VSCA 209; (2004) 11 VR 215.
Similarly, in R v Goncalves, Wheeler J said:
… there is no rule which prevents a party from calling witnesses who give inconsistent accounts of a series of events. Nor is it the case that a party is prohibited from submitting that the Court should prefer the account of one its witnesses to the account given by another…[60]
[60] (1997) 99 A Crim R 193 at 216.
In Graham v Police,[61] Gray J referred to Goncalves and many of the earlier authorities and concluded:
It is now settled that in the criminal court the Crown may call witnesses who give inconsistent accounts of a series of events. The Crown may submit that the court should prefer the account of one witness to that of another. The court can draw conclusions as to credit.[62]
[61] [2001] SASC 93; (2001) 122 A Crim R 152.
[62] [2001] SASC 93; (2001) 122 A Crim R 152 at [44], 165.
In the light of these authorities, I consider that the present reliance by the appellant on the New South Wales decisions of Kennedy and Teasdale is misplaced. The authorities indicate that the prosecutor’s third option as to the way in which the evidence of Ms Williams could be viewed was appropriate.
The prosecutor’s submission that Mr Down and Ms Williams may have been viewing the arrest of the appellant’s father, rather than his own arrest, stands on a slightly different footing. It involved a suggestion that, even if their evidence on this topic was honestly given, it was mistaken but without there having been any suggestion in the evidence that such a mistake may have been made.
For the reasons given earlier, I regard the prosecutor’s submission that Ms Williams may have observed the arrest of the appellant’s father, and not the appellant himself, to have introduced a theoretical possibility only. The evidence on the prosecution case could not really be rationalised on the basis that the person who Ms Williams saw being arrested, and, by inference, ill treated, may have been the appellant’s father.
However, I do not consider that the prosecution submission has given rise to a miscarriage of justice. I consider it probable that the jury would have well understood that the principal issue to be considered by them was whether the prosecution had excluded, as a reasonable possibility, that the appellant had sustained facial injuries as a result of ill treatment by the police at the time of his arrest. In my opinion, having regard to the conflicting evidence from the appellant himself (derived from his statements to the police after his arrest) and from Ms Williams, on the one hand, and from the police, on the other, the jury would have understood that the issue was whether there had been any ill treatment at all by the police, and not whether it was the appellant or his father who had been the subject of such ill treatment as there had been.
In relation to Mr Down, I consider that his evidence that he could not recognise the two men as they were arrested, could not say which one was where, and could not see either of them clearly left open a proper basis for the prosecutor’s submission to the jury concerning that evidence.
Accordingly, in my opinion this ground of appeal fails.
Unsafe and Unsatisfactory
I agree with the reasons of Gray J concerning this ground of appeal, and do not wish to add to them.
Conclusion
For the reasons given above, I would dismiss the appeal.
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