R v Busson - [2007] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BUSSON
[2007] SASC 179
Reasons for Ruling of The Honourable Justice Bleby
18 May 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWER OF CROWN TO CALL OR REFUSE TO CALL WITNESSES - DISCRETION OF CROWN
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWERS OF JUDGE - POWER TO CALL WITNESSES
Application under rule 8 for Information to be stayed unless Prosecution called a particular witness – Accused was initially jointly tried for the murder of her husband, but co-accused pleaded guilty to the charge of murder – Prosecution declined to call co-accused – Consideration of whether Prosecution required to call witness – Consideration of whether Court should call witness – Application refused.
Supreme Court Criminal Rules 1992 (SA), r 8, referred to.
The Queen v Apostilides (1984) 154 CLR 563; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; R v O'Brien (1996) 66 SASR 396; R v Griffis (1996) 67 SASR 170; R v Damic [1982] 2 NSWLR 750, applied.

R v BUSSON
[2007] SASC 179
BLEBY J:
Reasons for Ruling:
Introduction

The accused was charged with the murder of her husband. She applied pursuant to r 8 of the Supreme Court Criminal Rules 1992 for the Information to be stayed unless the prosecution presented James Slade to the court for cross-examination by the accused during her trial. On 20 March 2007 I refused the application for reasons to be published. These are my reasons.
Background
The accused was initially jointly charged with James Slade with the murder of her husband. When arraigned, they both entered pleas of not guilty. Their joint trial commenced on 31 October 2005, and after a ruling on a voir dire application and just before a jury was to be empanelled, Slade pleaded guilty to the charge of murder. The trial was then adjourned, and Slade was interviewed on two occasions by the police. In those interviews Slade admitted culpability for the murder of the deceased by stabbing him with a knife, and alleged that the present accused, June Busson, helped him after the murder to avoid detection. He also alleged that he only wanted to cause grievous bodily hard to the deceased and did not have the intention to kill. He admitted to stabbing the deceased 8 or 9 times in the chest. However, there were up to 80 wounds to the deceased’s body, most of which were stab wounds which, by inference, Slade suggested, must have been caused by the accused after death.
Before Slade was sentenced, further negotiations took place between the DPP and counsel for the accused. Those negotiations were unsuccessful. However, on 3 February 2006 the DPP filed a new Information charging the accused with one count of assisting an offender and one count of attempting to pervert the course of justice. The DPP entered a nolle prosequi in respect of the earlier Information charging the accused with murder.
The accused was arraigned on the fresh Information on 8 February 2006 and pleaded not guilty.
On 20 February 2006 Slade appeared before Anderson J for submissions on the fixing of a non-parole period. The Court was informed that Slade would be giving evidence for the prosecution in the accused’s trial on the fresh Information.
During those submissions Slade’s counsel informed the Court that Slade accepted responsibility for the killing of the deceased, but maintained that he had no intention to kill but only to cause grievous bodily harm. The prosecution took issue with the submissions on behalf of Slade that he only stabbed the deceased 8 or 9 times and that he only had the intention to cause grievous bodily harm. Nevertheless the prosecution accepted before Anderson J that Slade, on his version of events, was the sole murderer, that the accused was in bed asleep at Slade’s father’s house when the deceased was murdered and did not know of the murder until after it happened.
As a result of the submissions before him, the sentencing judge raised a number of questions, as a result of which Slade gave evidence. His cross-examination concentrated on whether he had the intention to kill or only to cause grievous bodily harm and whether he had only inflicted the 8 or 9 wounds on the deceased which he said he had. Before the sentencing judge, it was the prosecution case, again based on Slade’s evidence, that if the accused had inflicted any wounds, they would have been inflicted post-mortem.
After the completion of Slade’s sentencing submissions but before sentence the DPP informed counsel for the accused that the DPP had decided to reinstate the murder charge against the accused, as Slade was considered not to be a witness of truth. The sentencing judge was told, prior to sentencing, that Slade would not be called as a witness at the trial of the accused.
On 6 June 2006, the day before Slade was sentenced, the DPP filed a fresh Information charging the accused with the murder of her husband. The accused then applied for a permanent stay of the Information alleging that it was an abuse of the process of the court.
On 16 June 2006 Duggan J dismissed that application and gave reasons. Subsequently, the DPP entered a nolle prosequi in respect of the charges of assisting an offender and attempting to pervert the course of justice.
The DPP has confirmed that Slade will not be called to give evidence for the prosecution on the accused’s trial for murder. The accused’s legal representatives have attempted to interview Slade, but he has declined to speak to them.
The particulars of the grounds relied on by the accused are as follows:
1.1To proceed to trial without the prosecution undertaking to present James Slade for cross examination would be an abuse of the process of the court in that;
1.2    It would bring the administration of justice into disrepute among right-thinking people if the prosecution were allowed to proceed to trial against the applicant on murder having already accepted before the court a plea of guilty from James Slade on the basis that he alone was culpable for the murder of Denis Busson and not presenting Slade as a witness so that he may be cross examined by the accused Busson.
1.3    It would be an affront to justice if the jury hearing the Busson trial were not given the opportunity to hear Slade’s evidence and in particular his admissions that he alone murdered Denis Busson so that the jury could come to a properly informed conclusion as to whether or not the applicant was involved in the murder.
1.4    It would condone an abuse of the prosecutorial discretion in that:
1.4.1.1The prosecution accepted Slade’s plea of guilt on the basis that he alone murdered Denis Busson and therefore the prosecution should not be permitted to refrain from calling Slade as a witness on the assertion that he is not telling the truth in relation to him alone murdering the deceased.
1.5     It would be vexatious, oppressive and unfair for the applicant to face a murder trial when James Slade has pleaded guilty and admitting, without dispute from the prosecution, that he was solely culpable for the murder, which admissions would not be admissible in the applicant’s trial unless Slade was to give evidence.
1.6     It would be vexatious, oppressive and unfair to expect the applicant to call Slade as a witness for the following reasons.
1.6.1.1Although Slade admits to murdering the deceased alone he inculpates the applicant for the offence of assisting an offender, which offence is denied by the applicant.
1.6.1.2The applicant would be denied the advantage of cross-examination.
1.6.1.3Slade is hostile towards the applicant and refuses to speak with the applicant’s legal representatives.
By way of alternative it was submitted that the Court should call Slade as a witness, thereby allowing both the DPP and the accused to cross-examine him.
Whether the prosecution should be required to call Slade
The essence of the accused’s argument was that Slade had pleaded guilty to the murder on the basis that he carried out the initial stabbing which caused the death of the deceased, although he denied inflicting all the stab wounds. On the sentencing of Slade the prosecution only took issue with Slade’s contention that he did not intend to kill the deceased but only to cause him grievous bodily harm. It had not been part of the prosecution case that the accused participated in the stabbing. It was submitted on behalf of the accused that it was crucial for her defence that the jury in her trial hear evidence from Slade that he alone murdered the deceased.
The accused’s submission was that the prosecution submissions at the sentencing of Slade were that Slade was and admitted to being the sole party to the murder. To allow the prosecution of the accused to proceed without requiring Slade to be called would undermine public confidence in the courts and would not satisfy the demand of the community for consistency in prosecution in relation to the one crime. There was also the question of fairness and maintenance of public confidence in the fairness of procedures of the court.
I do not accept that submission. If there were any substance in the first part of the submission it might justify a permanent stay. However, that has been rejected by Duggan J for reasons which he has given and with which I respectfully agree. Subject to one qualification, the facts on which that application was based are no different from those now before me. The one qualification is that Slade now refuses to speak to the accused’s legal advisers.
There has been no relevant inconsistency in the prosecution position. It may have been that according to the evidence then before the court on Slade’s sentencing, there was no direct evidence of the accused actually participating in the stabbing. That does not amount to a concession by the DPP that the accused was not party to the murder, either by joint criminal enterprise or by aiding and abetting.
What was put by the prosecution before Anderson J on the sentencing of Slade did not necessarily involve any submission as to the position or role of the accused, either as to her participation in a joint enterprise or as aiding and abetting the murder. There is no inconsistency by the DPP, on the one hand, in the decision to charge the accused with murder on the second occasion and, on the other hand, with what the DPP had put on the sentencing of Slade, particularly after having re-examined the position and the evidence given by Slade, having decided that he could not be relied on as a witness of truth and having informed the sentencing judge that Slade would no longer be called at the trial of the accused.
As to any alleged unfairness of procedure in not requiring the DPP to call Slade so that he could be cross-examined by the accused, it has long been the case that a prosecutor is not required to call a person whom the prosecution considers is not a witness of truth. In their joint judgment the Full Court of the High Court said in The Queen v Apostilides:[1]
We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:
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.    Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.    When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial.   No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge.
5.    Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.    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 taken as a whole, it is seen to give rise to a miscarriage of justice.
[1] (1984) 154 CLR 563 at 575.
I agree with Ms McDonald that the cases support the following propositions:
1.The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. It is for the prosecutor to decide in a particular case what are the relevant factors and, in the light of them, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused.[2]
2.In deciding whether or not to call a witness the prosecutor should take into account whether the particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, and whether in the interests of justice it should be subject to cross-examination by the Crown.[3] As Dawson J said in Whitehorn v the Queen, “a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief”. [4]
3.Where the prosecutor considers the evidence unreliable and untrustworthy there will be cases where it will be appropriate for the prosecutor neither to call a witness as part of the prosecution case nor to call the witness so that the witness may be cross-examined by the defence.[5]
[2] Ibid; Richardson v The Queen (1974) 131 CLR 116 at 119.
[3] Richardson v The Queen (1974) 131 CLR 116 at 119.
[4] (1983) 152 CLR 657 at 674. See also Deane J at 664.
[5] R v O’Brien (1996) 66 SASR 396 at 397, Doyle CJ.
The prosecutor has taken the view that Slade cannot be held out as a witness of truth. There would appear to be justification for that view, supported by the conclusion of at least two judges. In the course of his reasons for refusing a permanent stay, Duggan J referred to the earlier intention of the prosecution to call Slade to give evidence at the accused’s trial. He then said:
However, after Slade gave evidence on the sentencing hearing, the prosecution decided that he could not be called as a witness against Mrs Busson. The prosecution took the view that Slade could not be presented as a witness of truth. Ms McDonald, who appeared for the Director of Public Prosecutions on the present application, stated in her outline of submissions that, while there had always been some concerns about Slade’s version of events, his evidence before Justice Anderson “was such that it tipped the scales against the prosecution being able to call him as a witness”.
In my view, a reading of Slade’s evidence supports the view that it was no longer appropriate for the prosecution to call him as a witness. The prosecutor at the sentencing hearing found it necessary to challenge him on a number of issues and there were several unsatisfactory aspects arising out of the version that he gave to the court. Although the sentencing judge said that his evidence had assisted him in some respects, he went on to say:
The details of the stabbing and the lack, on your version, of any discussion between you and Mrs Busson in relation to what happened to the knife are matters upon which I do not accept your evidence.
His Honour added that, in his view, Slade had not provided the police with a full story. He rejected the claim that Slade did not have an intention to kill Mr Busson.
These remarks were made by the sentencing judge after the prosecution had decided they could no longer call Slade as a witness. However, the conclusions which the sentencing judge formed as to Slade’s credibility were also open to the prosecution.
Later in his reasons Duggan J made the following observations:
The prosecution realised that there were difficulties with some aspects of Slade’s version, but it was decided to take what he said at face value and call him as a witness at the trial of the applicant on the two charges which were substituted for the murder charge.
However, when Slade’s version was tested at the sentencing hearing before Justice Anderson, the difficulties associated with it became more evident. It was necessary for the prosecutor to challenge him on important aspects of his evidence. In my view, it became quite obvious that the prosecution could not present him as a witness of truth at the trial of the applicant. Furthermore, the basis for altering the charges, in so far as it rested on his version, fell away.
In these circumstances, the decision of the prosecution to reinstate the charge of murder could not be regarded as flippant or made in bad faith. There is reason to doubt the wisdom of the earlier decision to place confidence in Slade’s version to the extent of deciding to call him as a witness. However, this decision was not made in bad faith.
I respectfully agree with those observations.
In his sentencing remarks Anderson J had also said:
I do not know where the truth lies but I find it difficult to accept that you were not both involved to some degree in this criminal enterprise.
…
I am not sure what your motivation is in the cooperation which you have provided to the authorities. On the one hand you may be cooperating to help yourself in an attempt to shift blame to Mrs Busson. On the other hand you may be attempting to help her. It is impossible for me to say what your motive is. Whatever the case, I find that you have not provided the police with the full story, and therefore your cooperation must be viewed in that light.
…
You have not told the whole story about the murder but on your own admissions it is a particularly callous act.
From these reasons I concluded that the interests of justice did not require the prosecution to call Slade, and that there was no justification for staying the proceedings unless and until the prosecution indicated that they would call him. Even though Slade had refused to talk to representatives of the accused, it was still open for them to call him themselves. They had available a number of statements which Slade had made in order to assist in making that forensic decision.
Whether the court should call Slade
There is no doubt that the court has power to call a witness whom neither party proposes to call. However, that should be done only in “the most exceptional circumstances”.[6]
[6] The Queen v Apostilides (1984) 154 CLR 563 at 575. See also R v Griffis (1996) 67 SASR 170 at 173-174, Cox J, Perry and Lander JJ agreeing.
Street CJ said of the power in R v Damic:[7]
It is a power to be exercised carefully, and with full regard to the ordinary rule that the parties and their advisers, who will be more familiar with the background circumstances, should not ordinarily suffer judicial intrusion into their conduct of the adversarial contest.
[7] [1982] 2 NSWLR 750 at 762, Slattery and Miles JJ agreeing.
In Whitehorn v The Queen[8] Dawson J made the following observations with which I respectfully agree:[9]
A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel. He is not equipped to do so, particularly in making a decision whether a witness should be called. As was pointed out in Richardson v. The Queen, he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision. If he calls a witness himself he will almost always have to do so in the dark, not knowing with any certainty what the witness is going to say or whether he can be relied upon. Cf. R. v. Collins. If the witness is unreliable (and if neither party has seen fit to call him, that is more likely than not), the fact that he is called by the judge may give his evidence an undesirable aspect of objectivity. There can be no assurance that his credit will be tested by either side but if it is, the judge has no means whereby he can ensure that any necessary steps to re-establish the witness's credit are taken. Because the judge does not know what a witness called by him may say, he may by calling him necessitate the calling of further evidence so that the trial takes a turn which was not intended and which further involves the judge in a function not appropriately his. (Footnotes omitted)
[8] (1983) 152 CLR 657.
[9] Ibid at 682 – 683. This passage was approved by the High Court in The Queen v Apostilides (1984) 154 CLR 563 at 576.

As the High Court observed in TheQueen v Apostolidies,[10] the refusal of the prosecution to call a witness, even for reasons which a judge thinks insufficient, would not constitute “most exceptional circumstances”. A moment’s reflection will indicate the difficulties that would arise in a case like this if the Court were to call Slade. The Court would be stepping into the adversarial arena. Would the judge have to lead the witness, knowing that he is unreliable, with both parties alleging dishonesty on his part? What assistance could the jury be given in endeavouring to determine where the truth lies? What directions could be given to a jury where both parties would almost certainly allege that the witness, called by the judge, is not a witness of truth?
[10] (1984) 154 CLR 563 at 576.
Whatever may constitute the most exceptional circumstances in which the Court might call a witness, I do not consider that this is one of them. For these reasons, I declined to act on the request that the Court should call Slade.