R v Andri No. DCCRM-01-880

R v Christopher James Andri
[2002] SADC 51
Judge Sulan
Criminal

The accused, Christopher Andri, is charged with one count of rape, one count of indecent assault and one count of common assault. Throughout the trial, a number of applications were made by Mr Borick for the accused, including a submission of no case to answer and several applications for a permanent stay. I refused the applications. Mr English for the prosecution applied for a mistrial. I refused that application. I now publish reasons for my decisions.
The alleged offences took place on the evening of the 18^th November 2000, at the accused’s home where he lived with his parents. The occasion was a birthday party for the accused and during the course of the evening, one of the guests telephoned an entertainment agency and requested the services of a striptease dancer.
At that time, the complainant, Paula Louise Martin, was a striptease dancer. She was contacted by her agent, Lorrenzo Varricchio (“Varricchio”) and she attended at the party at about 11 pm. The offences of rape and indecent assault are alleged to have occurred during the course of Ms Martin’s striptease performance. The alleged assault took place shortly after the performance had concluded. She described her performance in some detail, which included the participation of the accused. In summary, she described how, after she commenced her dance routine, she removed her dress and then crouched in front of the accused, who was seated on a chair. She had her back to him and started to remove her bra. The accused was grabbing at her bra. She said that she turned around and asked him what he was doing and said “Please don’t do that”. The accused stopped and sat back. She then sat on his knees facing him, with her bra still on, but undone. She was wearing only a g-string on the lower part of her body. She said the accused’s hands were moving and he was grabbing at her. There was a wrestle with his hands and she moved them to her waist. She gave the following evidence (page 50) :
"QWhat did you do to indicate where he could put his hands then.
ABy grabbing his hands and him being stronger than me, he’s put them up, I have put them down, he’s put them up, I have put them down, he’s put them up, sort of thing, sort of like this. I have just left them there then continued to undo my bra and get away from him (INDICATES).
HIS HONOUR
QWhen you say ‘put them up’ and ‘put them down’, where was he actually putting his hands.
AOn my breasts, and he was actually really grabbing at them.
QOn the outside of your bra.
ANo, on the inside of my bra.
QSo he was putting his hands into your bra.
AYes, because I had undone it by then.
QAnd you were, what, putting his hands down, putting them where.
AI was trying to pull them down, he was pulling them up, so we were having a bit of a wrestle situation there.
QThen what; where did this wrestle finish.
AIt finished with me actually physically having to pry his hands off me, his fingers, because he was hurting me, I didn’t want to look like I was losing control in the show, so I probably didn’t acknowledge that out loud, but I’m sure my face was clearly showing that I was not having a good time.
XN
QHow was he grabbing your breasts.
AIn full hands, and he was just grabbing and pulling at them, like he wanted to pull them off.
QAnd it was hurting.
AYes, it was.
QHow long did that go on for, with him grabbing your breasts.
AProbably not long, probably not long at all, probably about, I guess 20 seconds or so.
QAnd how was he actually gripping your breasts.
AReally hard.
QWas he squeezing.
AYes, squeezing, pulling, pinching, moving.
QDuring that time you were attempting to resist what he was doing with your hands.
AI’m sorry, I -
QAre you attempting to resist what he’s doing with your hands.
AAt one stage I let it go because I had to continue to take off my bra, I thought rather than keep on with this scenario, I’ll finish what I was doing and move on, get away from him because he was physically pulling me down onto his lap as well so I couldn’t really get up either.
QDid you eventually succeed in getting his hands away from your breasts.
AYes, I did.
QHow did you manage to do that.
ABy prying them off almost finger by finger.”
She then continued with the dance by getting off the accused’s knee. She directed him onto a rug and removed his shirt. He was wearing shorts and lying on his back on the rug. She covered herself and the accused with shaving cream. She said that during her performance she slid up and down the accused and deposited shaving cream on his face with her bare buttocks. At one stage during the performance, she had her back to the accused and was standing over him. She described how she poured body lotion down her back and onto the accused. She described what occurred (page 55) :
"AThen I proceeded to start pouring that down my back where it runs down me and dribbles on him in big large sploches and I sort of shake it around, splatter it everywhere and it makes a mess; it’s supposed to be funny. But, at that stage, that was when - while I was doing that I sort of lost my balance a little bit and I sort of had to stand up and - I remember sort of leaning forward a few times while I was losing my balance just mildly, but then I realised that he’s sat up and grabbed my leg.
QCan you just pause there for a moment; when did you notice he had sat up.
AAt the same time; it was all sort of in one motion.
QDid you have your back to him at that particular time; were you still performing that part of the act where you were using the moisturiser.
AYes, I was, yes.
QHow did you see him sit up; did you see him sit up at all.
AWhen I felt his hand I sort of looked.
QYou felt your leg being grabbed.
AYes,
QWhich leg was that.
AIt was my upper left leg that was being grabbed.
QWhat sort of force was used when it was grabbed.
AEnough so that I couldn’t move away.
QWas it a sort of gripping sort of action.
AYes, yes, it was.
QAnd what happened at that point.
AThen that was when he brought his other hand up underneath me and I felt his fingers and every - his fingers and hands probing my vagina. He has managed to insert a finger or two into my vagina and then he has - instead of moving his hand down he’s actually continued the whole way and I felt his fingers probing my anus and everything but he hasn’t managed to insert anything there, and then I have managed to get away and that is when I have just stopped the show and I said ‘That’s it’ and I grabbed my things and ran inside.
QDid you give him permission to do anything like that.
ATo put his fingers inside me? No, I did not.”
That is the conduct which it is alleged supports the charge of rape. She immediately stopped the performance. The accused followed her inside and pushed her and verbally abused her. The push is the alleged common assault.
She telephoned her boyfriend for assistance and told him that a person had placed his fingers into her vagina. He was unable to come because he had returned home from hospital that day after a serious operation. He telephoned his father and another friend. They arrived at the house shortly thereafter. They assisted her to collect her belongings and the three of them left. She eventually met her agent and her boyfriend at the Paradise Hotel. She complained about what had occurred and said that she intended to make a complaint to police. Her agent gave her the name of an officer at the Holden Hill police station. She appeared to be upset and she complained that the birthday boy had placed his fingers into her vagina.
Ms Martin made a complaint in the early hours of that morning to the police at Holden Hill and was told to return at 3 pm on the 19^th November 2000, when the officer to whom she had requested to speak, was due to be on duty. She returned to Holden Hill police station at 3 pm as arranged. In the early evening of the following day, the 19^th November 2000, she attended the sexual assault unit of the police department, where she made a statement. The matter was then referred to the investigation section of Adelaide investigations. Constable Stewart was assigned to be the officer in charge of the investigation. He is a long serving police officer, but has had little experience as a crime investigator.
At about 6.15 pm on the day after the incident, Ms Martin was examined by Doctor Hahne at the Women’s and Children’s Hospital. Doctor Hahne examined Ms Martin externally. She noted two bruises on Ms Martin’s left leg, one on her inner thigh and one on her mid outer thigh. She was unable to assess the age of the bruises. In Doctor Hahne’s opinion the bruises were consistent with blunt trauma and with Ms Martin having been gripped with one hand on one occasion.
Doctor Hahne did not perform an internal examination. She was unable to give a reason for not having performed a general internal examination. Ms Martin said that she had told the doctor that she had suffered no injury to the inside of her vagina.
Constable Stewart spoke to a number of people over the next few weeks, including the accused’s father. He interviewed and arrested the accused on the 4^th April 2001. He did not obtain the names of other people who had attended the party and who might have seen what had occurred, from the accused or his father. He did not interview any potential eyewitnesses prior to arresting the accused. He relied upon the statement that had been obtained from Ms Martin. He spoke to her on a number of occasions on the telephone. By that stage she had moved to Queensland.
At the close of the prosecution case, Mr Borick submitted that I should direct the jury to acquit. Later in his submissions, he said that he would like to consider his position further on the question as to the appropriate course that should be adopted. He submitted that I should determine that the trial is unfair and then consider whether the appropriate course is to direct the jury that there is no case to answer or direct them to acquit on the grounds of unfairness, or permanently stay the proceedings.
Mr Borick submitted that I should consider count two first. He submitted that there were a number of factors upon which I should conclude that it would be unsafe to leave the case for the decision of the jury. In summary, in respect of count two, the following matters were put to support his contention :
1.There is a total lack of corroboration to support the complainant’s allegations that the accused grabbed, squeezed and pulled her breasts to a point that it was painful.
2.The fact that she did not complain to the doctor who examined her, about her breasts, nor did the doctor observe any marks or bruising to her breasts. This is inconsistent with her claim about the accused’s conduct, and if anything, it supports the defence case that no act of indecent assault took place.
3.Her failure to tell the doctor about the grabbing of her breasts.
4.That a comparison of her evidence with the statement she made to the police reveals numerous inconsistencies which leads to the inevitable conclusion that her evidence is unreliable.
Mr Borick pointed to the implausibility of Ms Martin’s version and in particular, the fact that she continued to go on with the show after she had had her breasts handled to the point when it was painful and hurt her. Further, he submitted that the evidence of her agent, Varricchio, was that she was experienced in the industry and would not let something like this happen. The conclusion to be drawn from all of these combined features is that Ms Martin’s evidence is so inherently implausible that a jury properly directed could not convict the accused.
In addition to the matters referred to, Mr Borick relied upon the incompetent investigation and the failure of the police to interview and obtain statements from other people at the party who must have seen the events unfold.
As to count one, Mr Borick submitted that I should give consideration to all the matters he had raised in respect of count two. In addition thereto, he submitted that the evidence of the doctor, who observed two bruises to Ms Martin’s leg was not corroborative of her version. I should therefore treat her evidence in respect of count one as being uncorroborated. He submitted that her evidence about the manner in which the alleged rape took place was extraordinary to the point where it was inherently unreliable. He submitted that Ms Martin’s behaviour in sliding up and down the accused’s body whilst naked amounted to a form of entrapment and made her evidence as to how she was raped inherently unreliable. He pointed to a number of inconsistencies between her statement on the one hand, and her evidence in chief and then her cross examination. He said that her failure to mention a number of matters in her statement, which she mentioned in her evidence, some which she mentioned for the first time when under cross examination, were so significant as to make her evidence inherently unreliable. He referred to the evidence of complaint and that she had told her boyfriend, when she spoke to him on the telephone shortly after the event, that the person had placed his fingers into her vagina just a little way and then in evidence she had said that the two fingers went in deep and went in a long way into her vagina. He submitted that that inconsistency demonstrated her unreliability. He said her evidence of what happened in respect of the grabbing of her breasts, was implausible and that reflected on the balance of her story, to the point that the Court should conclude her evidence of rape is implausible. He drew attention to a number of matters, such as her description of performing the splits during the dance, which she had not included in her original statement. He referred to police incompetence in not carrying out a thorough investigation and obtaining statements from potential eyewitnesses. Further, he submitted there was prejudice to his client in the conduct of the police in arresting and charging the accused without conducting a full enquiry of all potential eyewitnesses. He drew particular attention to a number of witnesses from whom the defence had obtained information. He submitted that I should direct the jury to acquit.
As to the submission that the investigation was conducted incompetently, he submitted that the failure of the police to locate the accused and take fingernail scrapings from him had prejudiced his client. He submitted that the length of the accused’s fingernails may have been important, as there was no evidence of any injury to the vagina. He also submitted that the failure to interview those at the party shortly after the alleged incident had resulted in prejudice to the accused. When I asked Mr Borick whether he was suggesting that any witnesses of whom he had knowledge could not now clearly recall the events of that evening because of the effluxion of time and the failure of the police to speak to them, he said that that was not his case. He submitted that his client was prejudiced because his client should not be in Court and he was prejudiced because the police had charged him without going about an adequate investigation.
The test to be applied by a trial Judge in ruling upon a submission of no case to answer at the close of the case for the prosecution was considered by the Court of Criminal Appeal in The Queen v Bilick and Starke (1984) 36 SASR 321. At page 333, the learned Chief Justice made the following observations :
“There remains the central argument for Starke, namely, that the learned Judge was wrong in law in rejecting a submission of no case to answer made at the close of the case for the prosecution. Mr. Peek, for the appellant Starke, commenced his submission as to this ground of appeal by asking the Court to reconsider the decision of the Full Court in The Queen v. Prasad (1979) 23 S.A.S.R. 161 that the judge on a submission of no case is concerned only with the question whether there is evidence which is legally capable of leading to a conviction and not with the question whether the evidence is so lacking in weight that a conviction based upon it would be unsafe or unsatisfactory. Prasad’s case was decided only four years ago after full argument. We saw no reason, consonant with established principles, to reconsider it and declined to do so. I see no reason to doubt the correctness of the decision.”
At page 335, the Chief Justice referred to the decision of the Privy Council in Haw Tua Tau v Public Prosecutor (1981) 3 WLR 395 and in particular, the following passage :
“It is well established that in a jury trial at the conclusion of the prosecution’s case it is the judge’s function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence, for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of these essential elements, it is the judge’s duty to direct an acquittal for it is only on evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on.” (the italics are mine)
The position was discussed in Attorney-General’s reference (Number 1 of 1983) (1983) 2 VR 410. At page 417 the Court made the following observation :
“How then should the judge approach a submission of no case?
(1)If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2)The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a)where the judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case;
(b)where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
I understand Mr Borick’s submission to be that the case at bar is such that taking the Crown case at its highest, a jury properly directed could not convict, because of the unreliability of the complainant’s evidence and that her evidence is so inherently incredible that no reasonable person could accept it as being true.
In my view, the criticisms Mr Borick has made of the prosecution case and in particular the criticisms he has made of the evidence of Ms Martin, are matters which are properly matters to be determined by the jury. Ms Martin gave unequivocal evidence which, if accepted by the jury, could lead to a verdict of guilty. Corroboration of Ms Martin’s version of events is not required. Further, I know of no authority which requires a trial Judge to direct a jury, at the close of the prosecution case to acquit on the ground that combined with the unreliability of the complainant’s evidence, there has been an incomplete investigation or even an incompetent investigation, by the police, which might have produced evidence which supported the defence contentions or might undermine the complainant’s evidence so that no reasonable jury could rely upon it.

I consider that the issue of an unfair or incompetent investigation is a separate question to the application of no case to answer on the ground of the inherent incredibility of the complainant’s evidence. If an investigation is so deficient that the Court concludes that the accused cannot receive a fair trial, then the appropriate course, in my view, is to stay the prosecution. That would then enable the decision to be reviewed on appeal or alternatively, if it can be shown that the unfairness can be remedied, it would be open to the prosecution to apply for the stay to be lifted. I know of no recent authority to support the application to direct a jury to acquit on the ground that an accused cannot obtain a fair trial. It is not the role of a trial Judge to punish the prosecution, even if the Judge considers there have been substantial defects in the investigation. The question must be whether, in all the circumstances, the accused can receive a fair trial. Fair trial in this context does not mean that the conduct of the police must be perfect.
In my view, the matters referred to by Mr Borick in respect of counts one and two, as to the unreliability of the complainant’s evidence are not sufficient to establish that her evidence is so inherently incredible or unreliable as to satisfy the test of no case to answer. I therefore rejected the application.
That then brings me to the question of whether there have been such significant defects in the investigation of the case, that the accused is not able to obtain a fair trial. Mr Borick contended that the failure of the police to follow up and interview witnesses who had been at the party, was so unfair to the accused that I should direct an acquittal. He conceded in the course of argument that if this ground is made out, then the appropriate order may be a stay of proceedings.
Mr Borick referred to Penney v The Queen (1998) 72 ALJR 1316.
The appellant Penney had been convicted of attempted murder. The circumstances leading to Penney’s conviction were that the appellant had encouraged his wife to drive a vehicle which he customarily drove to work. He drove her car. As she was driving to work the appellant directed her to stop. He told her that he had left his briefcase in the boot. Whilst he was at the boot, it was the Crown case that he had placed a rag in the boot and ignited it. There was methylated spirits and other ignitable items which he had placed in the boot.
Experts were called during the trial. It was argued by the appellant that the prosecution had failed to negate various hypotheses consistent with the accused’s innocence. The appellant was convicted and his appeal was dismissed by the Court of Criminal Appeal. He appealed to the High Court. It was argued that the Court of Criminal Appeal had erred in failing to properly consider the issue of prejudice or risk of prejudice or the consequences which should follow as a result of an incompetent police investigation.
Callinan J wrote the leading judgment. Justices McHugh, Gummow, Kirby and Haine agreed. His Honour said (page 1319) :
“There is no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.”
His Honour went on to say :
“There is no general proposition of Australian law that a complete and exceptionable investigation of an alleged crime is a necessary element of the trial process or indeed of a fair trial.”
His Honour observed that there may be deficiencies in an investigation which might be of such significance to a particular case that the accused will be entitled to an acquittal or retrial. However, those deficiencies must be so important that they operate in fact to deprive an accused of a fair trial.
The question is whether the conduct of the investigation in this case was such that the failure on the part of the police to conduct a fair investigation has resulted in such unfairness to the accused so that the accused is unable to obtain a fair trial.
In Boyce v Nunn, judgment number 53 of 1996, Supreme Court of Northern Territory (unreported), the appellant had been convicted of assault. The appellant’s case was that he had acted in self defence. The events leading to the arrest and charge of the appellant occurred in a caravan park when the appellant and the victim were engaged in an argument. When he was interviewed by the police, the appellant told the police that there was an independent witness to the events who was living in a caravan in the caravan park. When the appellant was released on bail, it was a condition of his bail that he was not to approach the victim, which effectively meant that he was not able to go back to the caravan park or even make a telephone call. The police had led the appellant to believe that they would make enquiries and ascertain who the independent witness was, and obtain a statement from him. The police made a superficial attempt to locate the independent witness. They did not inform the appellant that the witness had not been located. They acknowledged that they knew that the appellant’s case was that he was acting in self defence and they acknowledged that it would have been important to the investigation to speak to the independent witness.
An investigating police officer is under a duty to consider all available evidence, whether it is exculpatory or inculpatory. In the case of Boyce, it was as a consequence of the police’s failure to locate the witness and their failure to inform the appellant that the witness had not been located, that resulted in the appellant being deprived of a fair trial, in that the witness was no longer available or locatable. Martin CJ observed that the appellant did not have an opportunity to make enquiries of the witness because he had undertaken not to go back to the caravan park as part of his bail conditions. Furthermore, he was told by the police that they would make the enquiry. His Honour went on to say :
“In my opinion the appellant was deprived by the failure of the police to make adequate enquiry of any prospect that the enquiry may have afforded evidence tending against a conclusion of guilt.”
His Honour referred to the case of R v Williams (1992) 8 WAR 265 and to the observations of the Court :
“Unfairness is not to be judged by fixed rules, nor is it necessarily to be judged by the propriety or otherwise of the actions of investigating officers. It is to be judged against the effect which some evidence or importantly in this case lack of evidence, will produce on the trial of the accused …. The respondent has been deprived of evidence which could be relevant at his trial concerning his condition at the time that the statements were made …. The respondent has been denied the opportunity of adducing evidence which could have been made readily available …..”
Martin CJ then went on to say :
“In this case the accused may have been in breach of his undertaking as to bail had he attempted to make enquiries for himself to identify the potential witness and he was entitled to rely upon what he was told by the police namely, that they intended, in fairness to him, to endeavour to do that. The appellant was denied by those circumstances of the opportunity of adducing evidence which could have been available and which may have supported his defence to the charge.”
In Hallett v R, Court of Appeal, judgment number 9/1995, Criminal Appeal of the Northern Territory of Australia, the appellant was charged with a number of offences of gross indecency. Gallop J in his judgment said :
“32. The matter which has caused me most concern is that it was the Crown case that when the respective offences were committed they were committed in public. In order to establish that element it was necessary for the Crown to establish the presence of a person not a party to the act (section 126 of the Criminal Code). The prosecution gave particulars of the names of the persons other than the appellant and complainants that it was alleged were present at the time of the relevant act. Yet the prosecution did not call any of the eight persons named in the particulars relating to counts one and five to give evidence and did not explain at the trial its reasons for not calling those persons.
“33. That eight persons who may have witnessed what the Crown was alleging the appellant had done and yet not called to give evidence on behalf of the Crown is surprising in itself. But the absence of an explanation is astonishing. At the hearing of the appeal before this court, counsel for the respondent proffered the explanation that the witnesses were not called to give evidence because the Crown did not have their evidence and did not know what they would have said about the Crown allegations. I agree with the submission on behalf of the appellant that this is an even more astonishing situation. It amounts to a statement by the Crown that the investigating police did not even make the enquiry or investigation from the eight named persons. If that is the way crime is to be investigated then the consequences may well be that any resulting conviction of that crime is unsafe and unsatisfactory.
“34. To my mind the failure to call as a witness any of those persons named whom the Crown knew were present and the further failure to provide any explanation at the trial for the Crown’s failure to do so is such a significant matter that the conviction cannot be allowed to stand.”
Thomas J agreed with the judgment of Gallop J. Angel J expressed no view about that aspect of Gallop J’s judgment.
Although there may be circumstances where the failure of the Crown to obtain statements or call witnesses results in unfairness to an accused to the point where a conviction is unsafe or unsatisfactory, each case must depend upon its circumstances. It is unclear to me upon what basis Gallop J had decided in Hallett’s case that the investigation in that case had the consequence of the resulting conviction being unsafe and unsatisfactory.
In my view, the failure of the police to interview every person who may provide evidence may be the subject of strong criticism, but that alone is insufficient to render the trial of an accused so unfair as to result in a directed acquittal or a permanent stay of the prosecution. If that proposition were correct, a failure by police to interview everyone involved in a melee would be sufficient to support an acquittal. Fairness in the conduct of criminal trials does not require an investigation to be perfect. There may be instances when an incomplete investigation has resulted in such prejudice to an accused person that it is not possible for him to obtain a fair trial, but in my view, this is not such a case. In this case, the defence have the names and have taken statements from a number of people at the party who had observed the performance.
As was observed in R v Apostolides (1984) 15 CLR 563 at 577, even the failure of the prosecution to call a witness whose evidence is essential to the unfolding of the case for the Crown, will not necessarily result in an unsafe or unsatisfactory verdict, even if it amounts to misconduct on the part of the prosecutor. The central question is not whether the prosecutor’s decision constitutes misconduct, but whether, in all the circumstances, the verdict is unsafe or unsatisfactory. In other words, was the accused deprived of a fair trial.
Mr Borick submitted that the failure of the police to interview all witnesses was so incompetent that it amounted to unfairness to the accused and that, combined with the other matters he had raised, justified a directed verdict of acquittal. In the alternative, he submitted that I should stay the proceedings.
As the argument proceeded, it was submitted that, in addition to the incompetent investigation, the accused had been further prejudiced by the failure of the Director of Public Prosecutions to cure the defect in the investigation by the prosecution not interviewing the witnesses. Mr Borick submitted that the solicitor for the accused had offered to provide a list of names of witnesses to the prosecution and that the request had been rejected. He also submitted that Mr Andri, the father of the accused, had agreed to provide a list of persons who had been at the party, to the police, but no such offer had been followed up by the police.
I was informed by Mr Patterson, junior counsel for the accused, that the solicitors for the accused had, on the 26^th June 2000, offered to provide a list of names of all people who were at the party to the prosecution. That offer was rejected. On the 8^th February 2002, there was a request from the Director of Public Prosecutions to the defence, that the defence provide the names of other persons present at the birthday celebration on 18^th November, with a view to statements being obtained from them by police. That request was answered by referring the Director of Public Prosecutions to a transcript of a directions hearing before Judge Lunn, on the 9^th October 2001. At that hearing, an officer of the Director of Public Prosecutions had informed Judge Lunn that the police had tried to take statements from people at the party but none of them would co-operate. It is agreed that that statement to Judge Lunn was not correct. The solicitor for the accused wrote to the Director of Public Prosecutions on the 15^th February 2002, in the following terms :
“We would also consider providing you with a list of the people who were at the birthday party on the night in question, and who have provided us with statements.
In view of the information passed to the court on Tuesday 9^th October 2001, we would not be confident that a person who has supplied that information to the DPP would be appropriate to interview witnesses.
We would therefore wish to be present while those witnesses are interviewed.
In view of the situation now being requested as a result of the information provided by the DPP to Judge Lunn and the information you have now requested we ask what is your position in relation to the trial commencing on the date when it is set. It would seem very unlikely that all of these witnesses could be interviewed and an assessment made by the DPP prior to the commencement of the trial. We would therefore suggest that it would be the responsibility of the DPP to explain to the court why the trial date should be vacated and reasons why it is being vacated.”
The Director of Public Prosecutions responded on the 25^th February in the following terms :
“I advise that the investigating officer in this matter, Detective Senior Constable Garry Stewart, has been requested to submit a declaration detailing all enquiries undertaken by him to ascertain who was present at your client’s birthday party. The police do not presently have the names of any witnesses to the alleged incident except for Ihor Andri and Barry Joanni both of whom declined to co-operate, refusing to provide signed statements.
If you are aware of potential witnesses to the alleged incident we would be obliged if you would provide us with their details. If you regard it as appropriate that these persons be interviewed by a police officer other than Detective Stewart that can be arranged, and if you still wish to be present we are confident that suitable arrangements could be made.
If you do not intend to provide this office with the details sought could you please advise the writer as soon as possible. The sooner we receive your reply, it would seem the less likely that an application to vacate the trial will be necessary. Our present view is that the trial date need not be vacated.”
The solicitor for the accused responded to the Director of Public Prosecutions advising that he, the solicitor, had a signed statement of Ihor Robin Andri, provided by the Director of Public Prosecutions and dated the 1^st February 2001, and he was therefore confused. The letter went on :
“In relation to the rest of your request, we would refer you again to the transcript dated 9^th October 2001 where a direction was made by His Honour Judge Lunn when informed that the prosecution was proceeding on the information as laid and only with the witness statements that had been supplied.
We are becoming increasingly concerned with the information that is being supplied to the DPP in relation to this matter.”
There was no direct response to the Director of Public Prosecution’s request, but it could be implied from the response by the solicitors for the accused that they were declining to provide the details of any witnesses’ identities of which they were aware.
During Mr Borick’s submissions, I asked Mr English on behalf of the Director of Public Prosecutions a number of questions and the following exchange took place :
“HIS HONOUR: What would be your position as the prosecutor in this matter if the identity of those who were at the party was provided to you now? And/or their statements, if they are available, or if they are prepared to be given over, or provided to you now, and you were requested to call the people, what would you do?
MR ENGLISH:           Well your Honour, I have closed my case.
HIS HONOUR:           I know, I might give you leave to re-open it if that request were made.
MR ENGLISH:           Our view about the situation at the moment is that that would necessitate then, at the close of the prosecution case, the prosecution interviewing some 20 to 30 people; they are the numbers that seem to have been mooted during the course of the trial.
HIS HONOUR:           I don’t know.
MR ENGLISH:           We don’t know but that proposition hasn’t been disagreed with by the defence during the course of the trial; 20 to 30 people.
HIS HONOUR:           No, I don’t know if they have got the identity of 20 to 30; I don’t know if they would want you to interview all 20 or 30. It seems there was something on the evidence of Ms Martin, perhaps 15 people actually observed this performance.
MR ENGLISH:           We just don’t know. We made a request for this information on 8 February; we made another request on 25 February, it was refused. Our attitude now is that those people are in the defence camp and that is our attitude towards it. So they are witnesses for the defence and if they are going to say things that exculpate the accused, well, their credibility will be tested about that. ……….”
Mr Borick submitted that having heard the submissions of Mr English, a further ground of prejudice, in his own words, was :
“a clear forensic prejudice when he (Mr English) submitted to the court that because of questions raised or requests made by the prosecution in February of this year, a year or more after the event, then these people are now to be considered as witnesses for the defence and will be cross examined as hostile witnesses to the prosecution, is an extraordinary statement. The forensic prejudice is that these people should have been spoken to. The prosecution witnesses, whether they help the prosecution or not, and we would have had an ability to test their story if necessary.”
He submitted that the defence have lost the forensic advantage of being able to cross examine the witnesses. That, submitted Mr Borick, was an element of unfairness.
The High Court considered the question of fairness in the process of trial in Jago v The District Court of New South Wales and Others (1989) 168 CLR 23. That was a case where it was claimed that extensive delay in bringing a matter to trial was, in itself, a sufficient ground of unfairness to the extent that there can be no trial or that it is a sufficient ground upon which a conviction should be overturned. The High Court considered the circumstances in which a Court has power to stay criminal proceedings. In that case, various members of the Court discussed the right of an accused person to a fair trial. Justice Deane, at pages 56 and 57, preferred to express it in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial. At page 57, His Honour went on to discuss the general notion of fairness in this context. His Honour said :
“The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused.”
Brennan J expressed the position at page 49 :
“By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge’s responsibilities are heavy but they are not discharged by abdication of the court’s duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.”
The Court accepted that there may be occasions when it is appropriate for the Court to order a permanent stay on the grounds that a person accused cannot obtain a fair trial, however, it is a power that should be exercised sparingly and with the utmost caution, and only to be exercised in the most exceptional cases (see Gaudron J at page 76). Justice Brennan observed that obstacles in the way of a fair trial are often encountered in administering criminal justice. He then gave a number of examples :
“Adverse publicity in the reporting of notorious crimes (Murphy v. The Queen (9)), adverse revelations in a public inquiry (Victoria v. Australian Building Construction Employees’ and Builders Labourers’ Federation (10)), absence of competent representation (McInnis v. The Queen (11); McPherson v. The Queen (12)), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility placed on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”
Mason CJ spoke of the test of fairness at page 33 :
“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial: see Barton (68); Sang (69); Carver v. Attorney-General (N.S.W.) (70). At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case.”

Whether the conduct of the prosecution might render a trial so unfair that it can lead to a miscarriage of justice, has been discussed in a number of authorities. In Richardson v The Queen (1974) 131 CLR 116, the High Court discussed the role of the Crown prosecutor. The Court said (page 199) :
“Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.
What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor’s decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable. In the context the word ‘discretion’ signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.”
The High Court again considered the question in Whitehorn v The Queen (1983) 152 CLR 657. The failure of the prosecution to call a young child who was the complainant, was discussed. Justice Deane posed the relevant question as being whether the failure by the Crown, either to call the child or to proffer any satisfactory explanation of the failure to call her, had the result, in the circumstances of the present case, that the applicant was denied a fair trial. His Honour observed at page 665 :
“The fact that criminal proceedings in this country are adversary in character means that what is required by the standards of fairness and detachment which should be observed by the Crown in the calling of witnesses may be modified by the informed consent of the accused. The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of a trial judge, particularly in summing up to the jury or in dealing with an application for an adjournment or for discharge of the jury, to seek to ensure that an accused receives a fair trial and the powers of an appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial. The question whether a trial judge may withdraw a case from the jury or direct an acquittal on the ground that, notwithstanding that there is evidence which would sustain a conviction, a failure by the Crown to call a particular witness has resulted in a situation where a conviction would be unsafe or unreasonable, has not been argued and need not be considered here (cf. Reg. v. Prasad (12); Reg. v. Galbraith (13); and the decision of the Victorian Court of Criminal Appeal in Attorney-General’s Reference No. 1 of 1983 (14)).”
Justice Dawson discussed the function of a trial Judge to ensure the propriety and fairness of a trial. His Honour said (at page 675) :
“The means by which a trial judge may ensure the propriety and fairness of a trial do not, however, extend to the assumption of responsibilities which are properly those of the parties. The decision whether to call or not to call witnesses in a criminal trial is a decision for the parties. If the Crown fails to call a witness whom the trial judge considers ought to be called, no doubt he may invite the Crown to reconsider whether the witness ought to be called and if the invitation is declined, and the judge remains of the same view, he may comment upon the failure of the Crown to call the witness. But if the trial judge were to do more, he would place himself in danger of usurping the function of the prosecutor.”
In The Queen v Apostolides (1984) 154 CLR 563 at page 575, the High Court formulated a number of general propositions applicable to the conduct of criminal trials in Australia. The third proposition referred to by the Court is that at the close of the Crown case, the trial Judge may properly invite the prosecutor to reconsider a decision not to call a witness and to have regard to the implications as they then appear to the Judge, at that stage of the proceedings, but that the trial Judge cannot direct the prosecutor to call a particular witness.
Having that principle in mind and the fact that the prosecutor should, in making his decision, have regard to the principle that the Crown case is to be presented with fairness to the accused, I referred Mr English to a number of decisions, including the decision of R v Armstrong (1998) 4 VR 523, a decision of the Court of Criminal Appeal of Victoria. The Court in that case considered the Crown’s duty to call eyewitnesses to any events which go to prove the elements of the crime. The Court observed that as a starting point, it should be borne in mind that in general, the Crown would be expected to call eyewitnesses of any events which go to prove the elements of the crime charged, even though they give accounts inconsistent with the Crown case (see page 537). Even in a case such as Armstrong, when the Crown prosecutor may have had a deep suspicion about the reliability of an eyewitness, the presence of such a suspicion would not, of itself, constitute an adequate basis for refusal to call an eyewitness to a disputed event. The Court said (at page 537) :
“But, as the High Court made clear in the passage from Apostolides set out above, the presence of such a suspicion would not, of itself, constitute an adequate basis for refusal to call an eyewitness to a disputed event in the kind of circumstances presently under consideration. Still less could it provide a foundation for the point blank refusal of a prosecutor even to have a witness interviewed in the first place or as happened here to consider notes proffered by counsel for the applicant indicating the substance of the evidence which it was anticipated the witness would give if called in the trial.”
In R v Kneebone (1999) 47 NSWLR 450, the New South Wales Court of Criminal Appeal made observations about the role of the prosecutor in determining whether to call an eyewitness. The Court stated (at page 460) :
“In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness’ account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness’ evidence is seen as not fitting the prosecution’s view of the case is likely to lead to a miscarriage of justice. R v Apostolides deals with the consequence of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: R v Anderson (Hilton Bombing case) (1991) 53 A Crim R 421.”
The Court discussed the question of what unfavourable to the Crown means. The Court observed :
“The concept of unfavourable to the Crown will not necessarily be satisfied simply because the witness’ potential testimony does not accord with some prosecutor’s view of the appropriate camp or some case theory which does not accord with all the otherwise reliable evidence.”
The question arose as to the appropriate course I should take. On the one hand, Mr Borick was contending that I direct an acquittal or alternatively, permanently stay the trial and, on the other hand, Mr English submitted that the trial should proceed and the defence should call any eyewitnesses considered by the accused’s advisors to be credible and able to give relevant evidence.
I pause to observe that the position reached at that stage of the trial could have been avoided if it had not been for the manner in which the case had been conducted by both the Director of Public Prosecutions and the solicitors and counsel for the accused.
Firstly, if the investigation had been conducted adequately and the investigating officer had sought names and details of those who had attended the party before arresting and charging the accused, the information may have been forthcoming, statements could have been obtained from those who were prepared to provide them and a fully informed decision about witnesses could have been made at that stage.
That not having occurred, the investigators should have attempted to obtain details of potential eyewitnesses and a request to the accused’s parents to provide a guest list should have been pursued at an earlier stage. Once the case was referred to the Director of Public Prosecutions, it is unfortunate that before the Court was asked to set the matter down for trial, a greater attempt had not been made to ascertain whether the solicitor for the accused was prepared to provide details of potential eyewitnesses.
The position became more uncertain when the solicitor for the Director of Public Prosecutions unintentionally misinformed Judge Lunn that attempts had been made by police to interview eyewitnesses who had refused to co-operate. The correspondence which followed, to which I have referred, did little to clarify the position.
The solicitor for the accused did not ask the Director of Public Prosecutions to call eyewitnesses. The solicitor was aware that the information provided to Judge Lunn must have been inaccurate. The solicitor had engaged an investigator to interview a number of eyewitnesses and would have known, if they had been asked, that they had never been approached by the police. He also must have concluded that the Director of Public Prosecutions and police did not know the identity of these witnesses, because they were asking for his co-operation in providing their names and addresses.
It was open to the defence to request the Director of Public Prosecutions to speak to these witnesses and assess their credibility before the trial commenced. No such request was made and despite the Director of Public Prosecutions’ request, no details of eyewitnesses were provided at that time. I accept there was no obligation on the part of the solicitor or counsel for the defence to provide the names, however, it seems to me that it is hardly consistent for the defence to complain about the failure of the prosecution to interview eyewitnesses on the one hand, and to refuse to give the names of those witnesses to the Director or the police, on the other hand.
Given the attitude of the defence, the Director of Public Prosecutions did not state to the solicitors for the accused that the Director of Public Prosecutions was unable to make decisions about potential witnesses unless the defence were prepared to provide details of their identity. The matter was left unresolved.
At the commencement of the trial, defence counsel made no complaint to me about the conduct of the Director of Public Prosecutions. Nor was any application forthcoming at that stage about deficiencies in the investigation. No application was made for a voir dire hearing before the trial commenced, to examine the conduct of the police and/or the Director of Public Prosecutions.
In my view, these matters should have been raised prior to the commencement or at the commencement of the trial, and the situation facing the Court at this stage of proceedings could have been avoided. The position now is that the complainant has given her evidence and been cross examined. A number of witnesses have been called. It was my view that it was in the interests of the administration of justice and a fair trial that I cure any perceived unfairness within the trial, even at such a late stage.
I therefore invited Mr Borick to indicate whether he would be prepared to provide the names of witnesses who the defence contended were eyewitnesses to the events that evening. I indicated to Mr Borick that the prejudice that he claimed might be cured by the prosecution interviewing eyewitnesses and deciding whether they will call the witnesses. Mr Borick agreed to provide the names of persons known to the defence and to provide summaries of statements that had been taken from them.
Mr English conceded that the position he had taken earlier in declaring the witnesses as being in the defence camp, without any attempt by the Director of Public Prosecutions to make an independent assessment of them, was an incorrect position and that he wished to reconsider his position. Having considered the offer by the defence to provide names of potential witnesses, Mr English then submitted that it was the prosecution’s position that the defence should call the witnesses. He submitted that there was no obligation on the Crown to call them, because the Crown had written to the defence on the 8^th and 25^th February 2002, requesting the names of the people and the names had not been forthcoming at that time. I indicated to Mr English that I did not consider that it was too late for the prosecution to speak to the witnesses and make a decision about them, and that I was prepared to grant a short adjournment to enable that to be done. Mr English reconsidered his earlier intimation and indicated that the prosecution would consider statements of those witnesses and make a more informed assessment about whether the prosecution was prepared to call them. He asked for an adjournment of seven days. I indicated that seven days was too long delay. After some discussion, it was determined to adjourn the case for two and a half days.
The matter was called on again two days later. Mr English made an application that I declare a mistrial. His grounds were firstly, that the prosecution had closed its case and that if a decision was made to call witnesses, the prosecution would be prejudiced because it had presented its case in one way and it may now have to call witnesses upon whom it had not opened. Secondly, he indicated that the prosecution could not make the decision about the witnesses until he had had an opportunity to speak to a number of other people who had been at the party whose names had not been provided by the defence, but whose identity had become known after he had spoken to a number of the prospective witnesses whose names had been provided by the defence.
Mr Borick opposed the application.
I refused the application. My reasons for doing so are that I reject Mr English’s submission that the Crown case was prejudiced by having now to re-open and possibly call witnesses upon whom the Crown had not opened. I consider that any decision of the prosecutor to re-open the case could be explained to the jury by me.
As to the submission that Mr English had not had sufficient time in which to speak to all relevant people in order to make decisions about the credibility of the eyewitnesses to whom he had already spoken, I rejected that submission. I accept that the situation may not be as perfect as the prosecution would have desired, but I rejected the submission that having had an opportunity to interview a number of witnesses who were present, it was not possible for the prosecution to decide whether those persons were to be called.
At the request of Mr Borick, I indicated that I would not require the jury for another three and a half days, which included the weekend and I indicated to Mr English that at the expiration of that time, when the matter resumed on Monday the 22^nd April, I would require him to state whether he intended to apply to re-open his case and call other witnesses.
On Monday 22^nd April, Mr English advised the Court that the prosecution had spoken to a large number of people and that he had considered very carefully his obligations and he had concluded that the prosecution will not be calling any of the witnesses. I then asked what was the basis of his decision. Mr English indicated that his confidence in the reliability and trustworthiness of the people who had been put forward, had been undermined and he referred to a meeting at the Campbelltown Sports and Social Club on the evening of Thursday 18^th April, at which the accused and a number of witnesses were present and the case was discussed. Mr Borick then asked me to rule in respect of the following applications.
1.His submission of no case to answer.
2.An application for a permanent stay of the trial as an abuse of process due to :
(i)an incompetent investigation;
(ii)unreliability and uncorroborated evidence;
(iii)incredible, implausible and unbelievable evidence;
(iv)failure by the prosecution to interview witnesses.
3.An application for a permanent stay of the trial as an abuse of process based on the matters referred to in 2 above and in addition thereto, a decision by the prosecution not to interview witnesses because they were in the camp of the accused and because their evidence would most likely be inconsistent with the evidence of the complainant;
4.An application to stay the trial as an abuse of process due to the defence having to supply the names and addresses of witnesses and give details of all witnesses after the prosecution had closed its case.
Mr Borick also complained about the decision of Mr English not to call witnesses.
I rejected all applications. In respect of the application of no case to answer, I rejected that for the reasons I have expressed earlier in these reasons.
As to the various applications for a permanent stay, I rejected the application based upon an incompetent investigation, for the reasons earlier expressed.
As to the claim by Mr Borick that he was required to provide the names of witnesses, I rejected that submission. At no stage throughout the proceedings were the defence required to provide the names and addresses of witnesses. As I indicated earlier, at the close of the prosecution case, the defence submitted that there was unfairness because the Director of Public Prosecutions had failed to make an independent assessment about eyewitnesses and therefore was in breach of his duty to act fairly. I indicated to Mr Borick that I was prepared to permit time for the Director to interview those witnesses to whom the defence were referring, however, that could only be done if the names and addresses were provided. I made it clear that it was hardly open to the defence to complain of unfairness in that regard, if they were not prepared to co-operate and provide the names. The defence were never under a compulsion to provide the names and addresses. I therefore rejected that submission.
As to the complaint about Mr English’s decision not to interview eyewitnesses because they were in the camp of the accused. At the time that Mr English indicated that that was the prosecution position, I queried Mr English about that and he later withdrew from that position and advised that the prosecution were prepared to interview witnesses. Given that the prosecution changed its position and subsequently did interview witnesses, there was no basis for the application.

When Mr English indicated that he had interviewed the witnesses and made judgments that the prosecution would not call them, I asked him for his reasons. He provided reasons. Mr Borick challenged those reasons. In my view, once the prosecutor had determined the position and advised me as an officer of the Court that that was his decision and given reasons, it is not then for the Court to undertake an examination of those reasons (R v Apostolides).
I considered that the prosecution having discharged its duties to consider the evidence of potentially material witnesses, and having decided that the prosecution was not prepared to put them forward as reliable and honest witnesses, then the matter should proceed in the ordinary way.
I am of the view that although the Director of Public Prosecutions has duties to ensure that an accused person receives a fair trial, the trial process is still an adversarial one and it is a matter for counsel ultimately to determine who the witnesses are that the prosecution will rely upon and/or call. Equally, it is a matter for defence counsel to determine who the defence will call.
The matter then proceeded and Mr Borick called a number of witnesses.
On Tuesday 23^rd April 2002, after the accused and his parents had given evidence, Mr Borick made a further application. He submitted that I should revisit the abuse argument. The basis of his application was that the reasons proffered by Mr English for not calling witnesses had not been substantiated and were in adequate. Mr Borick submitted that I should look more closely at the reasons proffered by Mr English for not calling the witnesses. Mr English indicated that he thought it was in the interests of justice that the witnesses be subjected to cross examination. The following exchange took place :
“HIS HONOUR: Did you form any view about whether these people were honest or credible?
MR ENGLISH:           I formed the view, in light of the things that were being said, that they were not being honest about things, and were unreliable, and may well be seeking to line the prosecution up in some way or other, if they were called, with a view to saying one thing, and then another in cross-examination.
HIS HONOUR:           Anything more?
MR ENGLISH:           No.
HIS HONOUR:           Mr Borick, Mr English has given the court his reasons as far as he’s prepared to give them.
MR BORICK:             Can I comment on those?
HIS HONOUR:           Yes, certainly.
MR ENGLISH:           There was one further thing before my friend starts. Another thing that was of grave concern to the prosecution in the way in which these witnesses were being made available, was as soon as they came into the office, they were straight down to a solicitor’s office providing affidavits about what was said. Your Honour has two examples of that, which were tendered before the court from Mr and Mrs Andri, and I have very much been left with the impression with all the witnesses, that as soon as I had finished speaking to them, they were off to see a solicitor to give a full briefing about what was discussed, and in those circumstances I had grave concerns about their cooperation and their objectives, and their motivations behind coming in and speaking to the DPP.”
Mr Borick submitted that the reasons proffered by Mr English were not sustainable. He submitted that the test for the prosecutor was not whether it was in the interest of justice that the witnesses be cross examined. He submitted that the suggestion that witnesses had got their heads together at a meeting on the 18^th April 2002, had not been established. He further submitted the fact that some of the witnesses had spoken on a social occasion some days before, was not a sufficient reason. The fact that the accused had told one of the witnesses he did not have to attend at the Director of Public Prosecution’s office was also not a reason and the fact that the prosecutor had formed a view that the witnesses were not being honest and were unreliable, was an extraordinary conclusion. He submitted in the circumstances, the accused was being placed at an unfair disadvantage and he submitted that I should grant a permanent stay. I refused the application. Mr English, as an officer of the Court, had indicated that he had made a judgment about the witnesses. He did not consider some of them to be reliable. He considered some not to be honest and he had formed that judgment having interviewed them. It is not for the Court to undertake an enquiry about decisions made by a prosecutor, unless there is clear evidence that the prosecutor is in breach of his duty or has acted with male fides. I can only repeat the propositions alluded to by the High Court in The Queen v Apostolides at page 575 :
“1.The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial Judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.…..
4.…..
5.…..
6.A decision of a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”
In my view, it would only be in the most exceptional case that a trial Judge would direct the stay of a trial based upon a failure or refusal by a prosecutor to call witnesses.
In the present case, Mr English, having made his decision, it was then a matter for the defence whether they called any witnesses who were present at the party. I pause to observe that defence counsel and solicitors had known the identity of a number of these witnesses for some months prior to the trial and had obtained statements from them. In that regard, it cannot be said that the defence were unaware of the identity of witnesses, nor can it be said that the defence did not have statements from those witnesses. Ultimately, it was a matter for a decision of counsel for the defence as to whether to call any witnesses.
On the 24^th April 2002, Mr Borick again made a further application for a stay. He submitted that having heard a number of the witnesses, the following points should be made :
1.That the assessment by the prosecutor that the defence witnesses put their heads together to lie was unsustainable.
2.That the defence were disadvantaged in having to call people who’s memories were unreliable due to the delay in them having been interviewed soon after the events.
3.The advantage given to the prosecution in being able to point out to the jury the inconsistencies in the evidence of witnesses whose memories had faded due to delay.
4.The ability of the prosecution to be able to attack the witnesses’ memories due to delay.
He expanded his submission to submitting that the prosecution had the advantage of being able to attack the evidence of important witnesses for the defence, because of the delay and incompetent investigation and the subsequent delay. Finally, he submitted that it will be necessary for me to direct the jury about why the prosecution were allowed to interview all these witnesses after they had closed their case and there is, therefore, prejudice to the defence case. Mr Borick further expanded his submission and suggested that the defence were forced to call witnesses once the prosecution had made its decision not to call them.
I rejected the submissions. I refer to my earlier reasons. I reject the submission that the defence were required to call the witnesses once the prosecution had determined that it would not call them. I made it clear to Mr Borick in argument that if the defence had determined not to call witnesses, then its failure to do so would not have been made the subject of any adverse comment and, in fact, I would have directed the jury in clear terms that the defence have no duty to call witnesses and no inference can be drawn against the accused because witnesses had not been called. For the reasons earlier expressed, I rejected that further submission.

[2002] SADC 51

22 April 2002