Criminal Law—Practice—Trial—Evidence—Crown Prosecutor—Discretion in conduct of case—Failure to call witness—Whether ground for setting aside conviction—Trial judge—Power to direct prosecutor to call witness—Power to call witness of own volition.
Decision
GIBBS C.J., MASON, MURPHY, WILSON and DAWSON JJ. This is an application by the Crown for special leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria in its criminal jurisdiction whereby the Court (Young C.J., Kaye and Tadgell JJ.) set aside convictions of the respondent on four counts of rape and ordered a new trial. The case, which was fully argued as if it were an appeal, raises important issues touching the responsibility and powers of a trial judge when a Crown prosecutor declines to call as a witness a person whose name appears on the indictment and who would be expected to be able to give evidence which is material to the matters in issue in the trial. It is not concerned with the related, but nevertheless distinct, topics of the responsibility and powers of a trial judge with respect to the recall of a witness after the party calling him has closed his case or the calling of evidence in rebuttal.
2. The following passage taken from the reasons for judgment of Kaye J. conveniently outlines the facts of the case and the course of relevant events at the trial:
"The relevant facts as verified by Crown
witnesses were as follows. On Saturday evening, 4th December, 1982, the
prosecutrix, then aged 32 years, and Julie Anne Tibballs were in a section of an hotel bar in Richmond. While they were awaiting the arrival of their friend Anne Lorna Jeffrey, the applicant invited the two women to have a drink with him and his friend, Robert Brodie. They refused because they were about to go in to dinner, having reserved a table in the restaurant of the hotel. Some minutes later the prosecutrix told the men that they could join them for a drink in the restaurant if they wished. When Jeffrey arrived, the three women took their table in the restaurant and commenced to dine. While doing so, the applicant and Brodie joined them at their table. The applicant sat next to the prosecutrix and Brodie next to Tibballs. Conversation between the party was pleasant and about general matters. At one stage the applicant put his arm around the prosecutrix and under her T-shirt, whereupon she quickly removed his arm. The two couples, however, became increasingly friendly, Tibballs and Brodie more so than the applicant and the prosecutrix. There were at least two occasions when the applicant gave the prosecutrix a quick hug. At closing time the party, except Jeffrey, set
off for the prosecutrix's home on her invitation, the prosecutrix driving the applicant in his car and Tibballs travelling in Brodie's car. After their…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
The Queen v Apostilides [1984] HCA 38
Case
[1984] HCA 38
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of R v Apostilides, which concerned the admissibility of evidence obtained in breach of a statutory provision. The central dispute revolved around whether evidence, obtained by police in circumstances that contravened section 30 of the *Crimes Act 1914* (Cth), should have been admitted at the trial of the appellant.
The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that was obtained in contravention of a statutory provision. Specifically, the Court had to determine the principles governing the admissibility of evidence obtained in breach of a statutory requirement, and whether the discretion to admit such evidence had been exercised appropriately.
The Court held that the admissibility of evidence obtained in breach of a statutory provision is a matter for the trial judge's discretion. This discretion is guided by the principle that the court should not admit evidence which has been unfairly obtained. However, the Court clarified that a breach of a statutory provision does not automatically render evidence inadmissible. The judge must weigh the probative value of the evidence against the prejudicial effect it might have on the accused, and consider the seriousness of the breach and the circumstances in which the evidence was obtained. In this instance, the High Court found that the trial judge had not erred in admitting the evidence, as the breach of the *Crimes Act* was not so serious as to warrant exclusion, and the evidence was highly probative.