R v Bale

[1997] QCA 461

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 390 of 1997

Brisbane

[R. v. Bale]

THE QUEEN

v.

HENRY VALENTINE BALE

Appellant

Pincus JA Thomas J Dowsett J

Judgment delivered 19 December 1997.

Separate reasons for each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Whether convictions for indecent dealing unsafe and unsatisfactory - Inconsistencies in complainant's evidence - Whether complainant confused dreams with memories - Eye witnesses not called to give evidence - No statements given to Police - Whether miscarraige of justice occurred.
Counsel:	Mrs D Richards for the appellant. Mr H Boreham for the respondent.
Solicitors:	H Boreham, Legal Aid Office (Queensland) for the appellant.

K J Booker, Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:  26 November 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 390 of 1997.

Brisbane

Before Pincus J.A.
Thomas J.

Dowsett J.

[R v. Bale]

T H E Q U E E N

v.

HENRY VALENTINE BALE

Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 December 1997

I have read the reasons of Thomas J. and agree with them. I propose, however, to make

some further remarks.

There is nothing in the notice of appeal or in the outline of argument relating to the

prosecution’s not having called witnesses, but the subject was discussed during the hearing of

the appeal. The only witnesses called for the Crown were the complainant and a police officer

K L McCune. In cross-examination of the latter it emerged that she was the police officer who

investigated the case. She said that she had not spoken to the complainant’s grandmother. As

to Joyce Bale, the appellant’s wife, the witness said that she had spoken to her on the telephone,

but not taken a written statement.

On the face of it, both the failure to speak to the complainant’s grandmother and the
failure to take a written statement from Joyce Bale are odd. According to the complainant’s

evidence, which is not particularly clear on this point, on numerous occasions, in the presence

of those two women, the appellant put his hand on her thigh and moved it up towards the crutch.

It seems likely that if these incidents happened on numerous occasions one or both women

would have noticed it. Neither was called. In the judge’s summing-up his Honour referred to the

fact that the defence had, in addressing the jury, made something of the failure to call Mrs Bale.

The aspects of this which require consideration are the failure of the police to interview

the complainant’s grandmother and the failure of the prosecution to call either witness; of these

two the more important is the latter. The significance of a failure by the prosecution to call a

relevant witness has been discussed in a number of decisions in the High Court and they have in

turn been dealt with in this Court. It seems to me enough to make reference to the latter

authorities. In Watt and Austin (C.A. No. 430 and 431 of 1993, 17 May 1994) Kiefel J. said:

"The responsibility of the prosecutor, bearing in mind the dictates of fairness, may require the calling of witnesses whose evidence might not be of assistance in obtaining a conviction . . . and in general terms would require all witnesses necessary for the presentation of the whole picture and whose evidence is available and admissible, unless there is a valid reason not to do so . . . [i]t is the prosecution’s decision alone whether to call witnesses . . . and not a question upon which a trial judge should adjudicate . . . [i]n practice the prosecution often accedes to a request to make a witness, not intended to be called by the Crown, available for cross-examination. It is a mistake however to infer from that conduct that there is an obligation upon the prosecution to call whomsoever the defence requires . . . ".

In McDonald v. Price (C.A. No. 319 of 1994, 25 October 1994) Davies J.A. and

Cullinane J. said:

"The prosecutor has the responsibility of determining the evidence to be called for the Crown and in making that decision he or she will be guided by considerations of fairness to an accused person . . . [w]hile the failure of the Crown to call a witness may constitute a ground for a new trial, this will only be so where that failure constitutes a miscarriage of justice . . . [t]here is no requirement that merely because there is a witness who is said to be prepared to give testimony contrary to that given by Crown witnesses that the Crown is thereby obliged to call that person . . . ".

Lastly, I refer to Moore v. Freemarijuana (C.A. No. 292 of 1996, 18 October 1996) in which the

President, Moynihan and Mackenzie JJ. remarked:

"The appellant argued that the prosecution should have called the analyst as part of its case. Before the Magistrate the appellant relied upon R v. Apostilides (1984) 154 C.L.R. 563. Nothing in that decision obliged the prosecutor to call the analyst. It is also authority for the proposition that a decision of the 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 as a whole, it is seen to give rise to a miscarriage of justice".

It appears to me that it would be inconsistent with these authorities to allow an appeal on the

ground of the prosecution’s failure to call the two witnesses I have mentioned. No question

about the propriety of not calling them was raised by the defence until addresses to the jury.

Quite different considerations might apply if, despite an objection to that course raised during

the trial, the prosecution insisted on not calling a relevant witness. If the Crown had been

criticized during the trial, but before addresses, for not calling the witnesses, some reason for the

failure might have been given or - more simply - the Crown might have called them.

As to the apparent inadequacy of the police investigation, I do not doubt that

circumstances might arise in which that could be a fact leading, either alone or in combination

with other matters, to a conclusion that the trial has miscarried. That will be so because the trial

has miscarried, not because the investigation has. The defect in the investigation must be such

as adversely to affect the trial.

In the present case there is no evidence to support such a conclusion, nor is it a reasonable
inference that the trial miscarried, or that harm was done to the defence prospects of acquittal,

by the failure to take a written statement from Mrs Bale or the failure to interview the

complainant’s grandmother. There was no evidence, or indeed suggestion, that the defence had

any difficulty about obtaining information from these people; for all one knows they did so.

In my opinion the apparent defect in the police investigations and the prosecution’s

failure to call these witnesses neither constitute a miscarriage of justice nor contribute in any way

towards a conclusion that the trial miscarried.

As to the discrepancies in the complainant's evidence, the extent to which they tend to

throw doubt on her credibility is very much a matter of impression. In the present case, I am left,

by the evidence, with the impression that the complainant's version of events is true in substance,

although much of the detail may be erroneous. Considering the youth of the complainant, and

the long passage of time between the offences alleged and the trial, the nature and extent of the

discrepancies relied on are unsurprising.

I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No. 390 of 1997

Brisbane

Before	Pincus JA Thomas J Dowsett J
[R v Bale]

T H E Q U E E N

v

HENRY VALENTINE BALE

Appellant

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 19 December 1997

I agree that the appeal must be dismissed. I agree with the reasons prepared by the

other members of the Court.