R v Chimirri
[2010] VSCA 57
•22 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 601 of 2008
| THE QUEEN |
| v |
| TERENCE CHIMIRRI |
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| JUDGES | NEAVE and REDLICH JJA and HOLLINGWORTH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 November 2009 |
| DATE OF JUDGMENT | 22 March 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 57 |
| JUDGMENT APPEALED FROM | R v Chimirri (Unreported, County Court of Victoria, Judge Gullaci, 27 March 2008) |
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CRIMINAL LAW – Conviction – Aggravated burglary – Whether evidence sufficient to establish trespass to part of building – Whether prosecutor breached duty by failing to call key witness – Whether failure to call key witness resulted in a miscarriage of justice – R v Apostilides (1984) 154 CLR 563 applied – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr P S Kilduff | Markotich Lawyers |
NEAVE JA
REDLICH JA
HOLLINGWORTH AJA:
The applicant, Terence Chimirri, was presented in the County Court on two counts each of aggravated burglary (counts 1 and 2) and common assault (counts 3 and 5) and one count of making a threat to kill (count 4) arising out of events occurring on 22 November 2003. Three previous trials relating to these events did not run to verdict. At the fourth trial the jury returned a directed acquittal on counts 2 and 3 and found the applicant guilty on counts 1, 4 and 5.
After hearing a plea in mitigation of sentence, the judge sentenced the applicant to 4 years’ imprisonment on count 1, 2 years’ imprisonment on count 4 and 6 months’ imprisonment on count 5, with 12 months of the sentence imposed on count 4 to be served cumulatively on the sentence imposed on count 1. The applicant was also sentenced to 6 months’ imprisonment on a count of resisting arrest, to which he had pleaded guilty on an earlier occasion. Two months of that sentence were to be served cumulatively with the sentence imposed on count 1.
This amounted to a total effective sentence of 5 years and 2 months’ imprisonment. His Honour ordered a non-parole period of 2 years and 9 months.
The applicant now appeals against his conviction on count 1.[1]
[1]Though the applicant was sentenced on 27 March 2008, his appeal was not heard by this Court until 10 November 2009, a year and 7 months later. This was due to the applicant’s failure to file his outline of submissions by the date specified, resulting in his application for leave to appeal being dismissed on 18 February 2009. His application was reinstated on 16 April 2009. On 26 June 2009 the Adult Parole Board cancelled his parole and ordered a further term of imprisonment such that his earliest release date became 3 February 2010.
Background
The applicant and Kylie Marshall had been in an on and off relationship for some years. She had stopped seeing the applicant shortly before the date on which the offences occurred.
Ms Marshall stayed from time to time at a house in 4 Andes Court, Epping, which was owned by her parents, Dennis and Edna Marshall. The applicant lived with his parents in a house nearby.
At about 2 pm, Ms Marshall and Pauline Montalto left the house in a car to buy some petrol. On the way to the petrol station, the applicant approached the car, began arguing with Ms Marshall and dragged her out of the car. Ms Montalto then drove back to the house to seek help from her former de facto partner and Ms Marshall’s uncle, Aaron Manga.
When Mr Manga arrived, the applicant and Ms Marshall were arguing about a set of keys belonging to the applicant which Ms Marshall did not want to return. Mr Manga told the applicant that he would get the keys. He said that he ‘shepherded’ the screaming and hysterical Ms Marshall back to the house.
Once in the house, Mr Manga took Ms Marshall into a bedroom. Whilst attempting to take the keys away from her, he saw the applicant and another male enter the house. The applicant came into the bedroom and produced a gun. Mr Manga approached the applicant, forcing him into the hallway. As the applicant and the other male were backing down the hallway, the applicant pointed the gun at Mr Manga’s head and repeatedly threatened to blow Mr Manga’s head off. Once outside the house, the applicant continued to point the gun at Mr Manga and threaten him. He fired the gun and left with the other male.
Ground 1
The first ground of appeal was as follows:
The verdict on count 1 (aggravated burglary) is unreasonable and unable to be supported by the evidence; in particular there was insufficient evidence to establish: (a) that the applicant was a trespasser in the part of the premises at 4 Andes Court (the bedroom) pleaded in the count; and (b) the required state of mind on the part of the applicant at the time of entering the bedroom.
The question raised by this ground is whether there was sufficient evidence to permit the applicant’s conviction for aggravated burglary. The applicant could only be convicted of that offence if the Crown proved beyond reasonable doubt that he entered the bedroom at 4 Andes Court knowing that he did not have permission to do so or was reckless as to whether he had such permission, with an intent to assault a person therein (the burglary elements).[2] In addition the Crown had to prove that he knew at the time of entry that a person was present in the bedroom or was reckless as to whether or not a person was present or that he was carrying a fire-arm or imitation fire-arm (additional elements required for aggravated burglary).[3]
[2]Crimes Act 1958, s 76(1)(b) (burglary).
[3]Crimes Act 1958, s 77(1)(b) (aggravated burglary). The presentment relied on the fact that the applicant was aware that a person was present or was reckless as to their presence. His Honour’s charge suggests that the case was conducted on the basis that he entered as a trespasser having an intention to assault a person and carrying a fire-arm or imitation fire-arm (s 77(1)(a)). Nothing was made of this point on the appeal.
To place this ground of appeal in context, we refer first to the history of the previous proceedings against the applicant on the charges of aggravated burglary. In the first and second trials, which did not proceed to verdict, the Crown’s case was that the applicant was guilty of aggravated burglary because he had entered the house, as a trespasser, with the relevant intent. The presentment in the trial to which this conviction relates charged him with entry into the bedroom as a trespasser, with the relevant intent. The change was presumably made because of the difficulty which the Crown might have encountered in establishing beyond reasonable doubt that the applicant had an intention to assault someone on the premises, at the time at which he was said to have entered the house as a trespasser.
Before empanelment of the jury in this trial there was discussion between the judge and counsel about the evidentiary basis for the aggravated burglary counts. Defence counsel sought a stay of the aggravated burglary counts, submitting that the Crown should not be permitted to adduce evidence relied on at the previous trials showing that the applicant had entered the house as a trespasser, in relation to the different allegation that he had entered the bedroom as a trespasser.
In his ruling the judge summarised defence counsel’s submission in support of a stay as:
this will result in the Crown leading evidence of an uncharged act of aggravated burglary, and if the Crown is permitted to present its case in this way it will result in an artificial division of burglary into a whole series of burglaries, depending on how many discrete areas and rooms of the house an offender is alleged to have entered with the requisite intent.
His Honour declined to grant a conditional stay of the aggravated burglary counts, because no authority was cited to him by counsel for the applicant which precluded the Crown from relying on the accused’s entry into the bedroom as a trespasser. However at the conclusion of the Crown case his Honour directed an acquittal on count 2.[4]
[4]This was because his Honour considered that there was no evidence that the accused had an intention to assault when he entered the house (as opposed to the bedroom). Note that in relation to count 2 his Honour referred to the lack of evidence of an intention to assault on entering the bedroom, but when read in context it appears that the reference should have been to entry into the house.
Counsel’s submissions
At the hearing of the appeal counsel for the applicant again submitted that, even if the applicant had entered the house knowing that he did not have permission to do so, or was reckless as to the lack of permission, this evidence could not be relied on to show that he entered the bedroom as a trespasser. The act of trespass to the house was said to be an uncharged act. Counsel submitted that the Crown had conflated two separate acts of trespass: the alleged trespassory entry into the house and the alleged trespassory entry into the bedroom. It was not sufficient for the Crown to prove beyond reasonable doubt that the applicant intentionally trespassed when he entered the house, and that by the time he entered the bedroom he had formed the intention to assault a person there.
Further, counsel submitted that even if a trespassory entry into the house could be regarded as continuing when the applicant entered the bedroom, Mr and Mrs Marshall’s evidence did not establish beyond reasonable doubt that on 22 November 2003, the applicant did not have permission to enter the house and/or that he intentionally entered without permission or was reckless as to that lack of permission.
Counsel for the Crown submitted that there was sufficient evidence to permit a jury to conclude beyond reasonable doubt that the applicant entered the house as a trespasser. The applicant had no legal title or interest in the property enabling him to enter as of right and there was no evidence that he had been given permission to enter by anyone with authority to do so. In support of that argument counsel relied on Mr and Mrs Marshall’s evidence to the effect that the applicant did not have permission to enter the house, that their daughter did not have authority to grant him that permission and that he knew that this was the case, or had made no attempt to discover whether he had permission to enter.
Counsel for the Crown submitted that the applicant’s trespassory act when he entered the house continued when he went into the bedroom. There was sufficient evidence to permit the jury to conclude that when he went into the bedroom he had an intention to assault a person there. The intention to assault could be inferred from Mr Manga’s evidence that the applicant had drawn his gun while in the bedroom, had told Mr Manga not to ‘touch her’ or to ‘leave her alone’, and from his subsequent conduct in pointing the gun at Mr Manga when he had been forced back into the hallway and saying to Mr Manga: ‘I’m going to blow your fucking head off’.
Counsel submitted that the circumstances were not such as to require a jury to entertain a reasonable doubt about the applicant’s guilt[5] and that this was not a case in which ‘there was a reasonable hypothesis consistent with the [applicant’s] innocence’.[6]
[5]De Gruchy v The Queen (2002) 211 CLR 85.
[6]Ibid 94 (Gaudron, McHugh and Hayne JJ).
Evidence relating to permission to enter the house
Neither the applicant nor Ms Marshall gave evidence at the trial. (As we discuss below, grounds of appeal 2 and 3 concern the prosecution’s failure to call Ms Marshall).
Ms Marshall’s father, Dennis Marshall, and his wife, Edna Marshall, lived at 4 Andes Court. In his evidence-in-chief Mr Marshall said that he did not ‘agree with’ the relationship between the applicant and his daughter and that both of them were aware of this. The applicant was not allowed at the house at the beginning of Ms Marshall’s relationship with him. Mr Marshall thought he was ‘banned on the 22nd November 2003’ and then said he recalled an incident when he told the applicant that he was banned from the house, though he could not recall when it had occurred. He had not told him after that time that ‘it was okay to come to the house’. However he conceded that the applicant had been to the house on some occasions before the day the offences were committed.
Although Mr Marshall’s children had authority to allow people to come to the house, he had told his daughter that the applicant was not to ‘come onto our premises’ when he or his wife were not home and had relied on his daughter to communicate this to the applicant. Mr Marshall said in his evidence-in-chief that he could not remember whether he had ever had a discussion with the applicant about the terms on which he could come to the house. He also said that the applicant knew ‘full well’ that he was not to come to the house and that if he saw Mr Marshall or his wife ‘he wouldn’t come into our court. He would take off’.
Mr Marshall said that when he and his wife were home and had been advised in advance, he considered allowing the applicant onto the premises ‘to build a relationship with him’ and avoid losing his daughter. In such a situation, he would inform his daughter of their permission in advance. In response to a question from his Honour Mr Marshall said that he was ‘pretty certain’ that, as at November 2003, the applicant was not permitted to come into the house.
In cross-examination, Mr Marshall conceded that it was not very clear in his mind what he had said or not said to the applicant as at 22 November 2003. The applicant’s visits to the house were ‘spread over a period of years’. He knew that the applicant had visited the house even after Mr Marshall had visited the applicant in his own home, and told him that he was banned. After that occasion, Mr Marshall told another person to recommunicate the ban to the applicant. Mr Marshall was ‘pretty sure’ that his daughter had allowed the applicant into his house when he was not meant to be there, as he had seen his daughter and the applicant on occasions walking together towards the house and the applicant turning around at the sight of Mr Marshall or his car. Indeed, the applicant visited the house on a number of occasions after 22 November 2003. In response to a question as to whether it would have been all right with him if the applicant entered the house to stop Ms Marshall being attacked by another person he said that it would not have been.
Mrs Marshall said that she did not approve of her daughter’s relationship with the applicant. She said that her husband was responsible for deciding whether to allow the applicant to come to the house and that the applicant very rarely came to the house. She said the applicant would have been aware that he was not welcome because Ms Marshall would have told him that this was the case. She also said she had expressly told him that he was not welcome and it was implied in her conversations with him about her disapproval of the relationship. She believed her husband had also told him he was not welcome. She said that as at 22 November 2003, the applicant was not welcome at the house.
In cross-examination, Mrs Marshall reiterated that the applicant was not welcome at the house on 22 November 2003, but conceded that the relationship may have been ‘on’ (as opposed to ‘off’) as at that date. She said that it was her daughter, and on occasion her husband, who would inform the applicant if he was welcome. She said that the applicant would come to the house sometimes after being told that he was not welcome. She again said she knew that the applicant came to the house when she and her husband were not there.
In re-examination, Mrs Marshall said that neither she nor her husband had authorised their daughter to invite the applicant into the house.
Mr Manga’s evidence was that when he left the applicant in the street he said: ‘Terence, stay there, I will get the keys. I’ll get you the keys and when you get the keys don’t come back here again’.
Conclusion on ground 1
Because the Marshalls had an exclusive right to possession of their home, they had the power to exclude people from entering the house or any part of it.[7] If the applicant did not have permission to enter the house, or had permission to do so only when Mr or Mrs Marshall authorised a specific visit, he entered the house as a trespasser on 22 November 2003. There was no evidence that he was invited to visit on that occasion.
[7]Francis Trindade and Peter Cain, The Law of Torts in Australia (3rd ed, 2003) (‘Trindade and Cain’), 105.
If different persons are in exclusive possession of parts of a building, one person may license entry into the part of the building of which they are in possession. This does not confer a licence to enter a different part of the building which is in another person’s exclusive possession.[8]
[8]Ibid 105-106; cf R v Walkington [1979] 1 WLR 1169, 1175.
That principle is not relevant here. Mr and Mrs Marshall were in possession of the whole of their house. The bedroom used by Ms Marshall and her sister was not separate from the rest of the house. Ms Marshall was not a tenant and had no right to exclude her parents from the bedroom. The applicant entered the bedroom by coming in the front door of the Marshalls’ house and walking down the hallway into the bedroom. He was a trespasser when he did so.[9] It follows that if there was sufficient evidence to permit the jury to conclude that the applicant’s entry into the house was trespassory, he was still a trespasser when he entered the bedroom.
[9]The tort of trespass may be committed by remaining upon land after initial unauthorised entry: Harold Luntz, David Hambly and Robert Hayes, Torts, Cases and Commentary (1985), 905.
We consider that Mr and Mrs Marshall’s evidence was sufficient to permit the jury to find beyond reasonable doubt that the applicant had, at the most, limited permission to enter the house. Although he had been permitted to come to the house on some occasions, he had been banned from visiting in the absence of Mr Marshall and/or his wife.
Mr Marshall could not recall precisely what he had said to the applicant on particular occasions before November 2003 but said that he recalled an occasion when he had gone to the applicant’s home and told him directly that he did not want him coming to the house. He could not recall how long before 22 November 2003 this had occurred, but said that between the time he told the applicant that he was banned and 22 November 2003, he had not told him that ‘it was okay to come to the house’.
Mrs Marshall said that she and her husband had told the applicant that he was not welcome and that this was the case on the 22 November 2003. Further, both Mr and Mrs Marshall gave evidence that their daughter was not allowed to give the applicant permission to enter the house, unless they were present.
In our opinion the Marshalls’ evidence also allowed the jury to conclude that the applicant knew he did not have general permission to enter the house. In addition to Mr Marshall’s evidence that he had told the applicant on a previous occasion not to visit, Mr Marshall said that if the applicant saw Mr Marshall or his wife when he was coming towards their house he would ‘take off’. The jury was also entitled to infer that Ms Marshall would have told the applicant, with whom she was in a close relationship, that he was not to come to the house when her parents were absent.
His Honour instructed the jury that in order to find the applicant guilty of aggravated burglary they would have to be satisfied beyond reasonable doubt that he knew or believed that he did not have permission to do so, or was reckless as to whether he had permission. He said that:
A person is said to be reckless if he knew or foresaw the probability that he did not have permission to enter the bedroom but did so regardless of that probability.
Even if (contrary to the view expressed above) there was insufficient evidence to permit the jury to find beyond reasonable doubt that the applicant knew that he was not permitted to come into the house (and hence the bedroom) on the day of the alleged offence, there was certainly sufficient evidence that he entered the house reckless as to whether or not he had permission to do so.
The applicant had not only been told on at least one occasion not to come to the house, but Mr Manga’s evidence was that he had told the applicant to stay in the street on the day of the offence. The applicant came into the house despite the reminder that he was not welcome there.
It was also necessary for the prosecution to prove that when the applicant entered the bedroom as a trespasser he did so with the intention to assault a person in the room. We would accept the submission on behalf of the Crown that the evidence that the applicant pulled out a gun in the bedroom, and the events which followed in the hallway, provided the basis for an inference beyond reasonable doubt that he entered the bedroom with an intention to assault Mr Manga.
Accordingly ground 1 fails.
Grounds 2 and 3
These grounds were as follows:
2.The learned trial judge erred in not directing the jury to return a verdict of not guilty on count 1 (aggravated burglary) in circumstances where the prosecution called no evidence from the eye witness Kylie Marshall as to whether or not she had invited the applicant into the bedroom.
3.There has been a miscarriage of justice because the prosecution failed to call the eye witness Kylie Marshall.
Ms Marshall was a witness for the prosecution at the committal. Counsel for the Crown declined to call her at the trial, on the basis that she was an unreliable witness. Grounds 2 and 3 complain that the prosecutor should have called Ms Marshall, and that his failure to do so resulted in a miscarriage of justice.
Counsel’s submissions
Counsel for the applicant relied on the statement of Gaudron and Hayne JJ in Dyers v The Queen[10] that:
the prosecution, representing the State, must act ‘with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one’ (emphasis added).[11] That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.[12]
[10](2002) 210 CLR 285 (‘Dyers’), 293; see also 327 (Callinan J).
[11]Whitehorn v The Queen (1983) 152 CLR 657 (‘Whitehorn’), 663-4 (Deane J).
[12]Ibid 674 (Dawson J). See also R v Kneebone (1999) 47 NSWLR 450 (‘Kneebone’), 462 (Greg James J); 470–1 (Smart A-J); R v Lucas [1973] VR 693, 705-8 (Newton J, Norris AJ). Counsel in this case also cited R v Buckland [1977] 2 NSWLR 452 (‘Buckland’).
Counsel submitted that Ms Marshall was an occupier of the house and that she could have given evidence as to whether she had authority to permit the applicant to enter the house and the bedroom within it. As an eye-witness she could also have given evidence as to the events which occurred while the applicant was in the bedroom. Ms Marshall was a prosecution witness at the committal. Counsel argued that the Crown’s failure to lead evidence from Ms Marshall meant that it had not excluded a reasonable hypothesis consistent with the applicant’s innocence, so that a jury, acting reasonably, must have had a reasonable doubt as to the applicant’s guilt. Thus the judge should have directed the jury to return a verdict of not guilty on count 1.
Counsel relied on R v Shaw,[13] where the prosecutor did not call an eye-witness to events leading to the death of the victim because her version of events was inconsistent with the versions given by the accused and other witnesses, and the prosecutor regarded her as unreliable.
[13](1991) 57 A Crim R 425 (‘Shaw’).
The appeal was allowed by this Court, which held that in the circumstances of the case the failure to call the witness had given rise to a miscarriage of justice. In the course of his reasons Young CJ said that the prosecutor had wrongly exercised his discretion:
The mere fact that a potential witness has made inconsistent statements will not generally be a reason for not calling the witness but unreliability may be supported by other considerations as well. In this case the learned judge at the outset described [the witness] as a crucial witness and so indeed she was. She was present at the time and an eyewitness to the striking of the deceased by the applicant. She was the only one of those present who was not called. Moreover, in an altercation of the kind that occurred, which as [the witness] herself said happened so quickly, it is generally speaking important that all eyewitnesses are called.[14]
[14]Ibid 429 (Young CJ).
Murphy and Nathan JJ took a similar view, with the latter commenting that:
In relation to murder cases, eyewitnesses do not belong to a camp, but are within the class of persons from whom juries expect and are entitled to hear. The characterisation of witnesses being in ‘camps’ is unfortunate. It necessarily implies that the prosecutor might choose to call only those witnesses favourable to his camp. This is in absolute derogation of a prosecutor’s responsibilities.[15]
[15]Ibid 450 (Nathan J).
Counsel for the applicant submitted that prosecuting counsel had not called Ms Marshall because he considered that she fell into the applicant’s camp. In Shaw[16] this was regarded as an insufficient basis for displacing the prosecutor’s duty ‘of helping to ensure’ that the accused had a fair trial.
[16]Ibid.
Like the witness in Shaw,[17] Ms Marshall was an eye-witness to the events giving rise to the aggravated burglary count. Counsel for the applicant submitted that the prosecutor’s failure to call her as a witness had deprived the applicant of the forensic advantage of being able to cross-examine her, and had resulted in a miscarriage of justice.
[17]Ibid.
Counsel for the Crown submitted that the decision not to call Ms Marshall as a witness was justified, because the prosecutor had taken the view that she would say anything to assist the applicant and there was evidence that she had attempted to persuade Mr Manga to give evidence which was favourable to the applicant.
The effect of the prosecutor’s decision not to call Ms Marshall had been the subject of detailed submissions and a ruling of the judge in the aborted 2005 trial, which was given after defence counsel applied for a conditional stay of those proceedings.
In that trial, defence counsel had submitted that the applicant could not receive a fair trial because the Crown had indicated that it did not intend to call Ms Marshall as a witness, even though she was an eye-witness to the events and could have given evidence as to the applicant’s reasons for entering the premises and the fact that Mr Manga had previously been violent to her.
The prosecutor had told the judge in the 2005 trial that he was not proposing to call Ms Marshall as a witness because Mr Manga had made a statement to the police deposing that Ms Marshall had made contact with him and his de facto wife to persuade him not to give evidence against the applicant. In a later statement to the police, he deposed that they had met and ‘she’d pleaded with me to drop all charges against Terence’.
The stay was refused by the trial judge (the same judge who presided over the trial resulting in these convictions). In his ruling at the earlier trial, the judge noted that the Crown did not seek to lead any evidence from Mr Manga about the approaches made by Ms Marshall, though it was intimated that if the Crown were later given limited permission to cross-examine Ms Marshall, she would be cross-examined about what she had discussed with Mr Manga.
In his ruling his Honour made no comments as to the reliability of Ms Marshall, but said (among other things) that based on his observations of her at her voir dire, she was not a person likely to be over-awed by giving evidence in court. She was:
more than capable of facing cross-examination and if called by the defence … there would be no difficulty in leading evidence from her which on the face of it is of substantial assistance to the accused.
His Honour further said:
The evidence that she is likely to give is consistent evidence and the defence in my view is not disadvantaged by not being able to cross-examine her, because in my view she will volunteer the evidence sought to be led.
The crucial issue between the parties is whether she had been truthful and whether she is in the camp of the accused and prepared to do or say anything to ensure that Mr Chimirri has the best chance of acquittal.
In my view the defence is disadvantaged by (a) the Crown not calling her as a witness; and (b) by the Crown being able to cross-examine her and introduce her prior convictions.
On the material available to me and in particular the viva voce evidence put before the court from Ms Marshall, and to a lesser extent Mr Manga, I am satisfied that it was open to the learned prosecutor to decline to call Ms Marshall either to adduce evidence from her or place her in the witness box for the purposes of cross-examination by the accused. It becomes then necessary to consider whether the failure of the Crown to call Ms Marshall is likely to result in an unfair trial for the accused.
Whilst it is clear in my view that the accused is to some extent disadvantaged by the prosecutor's decision not to call Ms Marshall, I am not persuaded that the decision has the affect [sic] that the accused is not able to receive a fair trial. The trial judge may in the appropriate circumstances, make a comment during his charge to the jury on the failure of the Crown to call an eye witness to ensure that any disadvantage by the accused is balanced by such comment. Accordingly, I am not persuaded that the court should order a conditional stay of the proceedings.
Counsel submitted that in the later trial there had been no miscarriage of justice as a result of the Crown’s failure to call Ms Marshall.[18] The applicant did not suffer any significant forensic disadvantage, since her evidence was favourable to him and she could have been called as a defence witness.
[18]R vApostilides (1984) 154 CLR 563 (‘Apostilides’); see also Shaw (1991) 57 A Crim R 425; Kneebone (1999) 47 NSWLR 450.
In answer to the submission that there was a reasonable hypothesis consistent with innocence, counsel for the Crown submitted that the real question raised by this submission was whether the verdict was unsafe and unsatisfactory and relied on the submissions he had made on ground 1.
Conclusion
In R v Apostilides[19] the High Court set out the following propositions relating to the conduct of criminal trials:
[19](1984) 154 CLR 563 (‘Apostilides’).
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.
We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor’s role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.[20]
[20]Ibid 575-6. See also Whitehorn (1983) 152 CLR 657, 674 (Dawson J).
Although Ms Marshall gave evidence at the committal and was named as a witness on the first presentment, in our view the prosecutor did not breach his duty by refusing to call Ms Marshall.
The prosecutor’s decision was not based simply on the likelihood that Ms Marshall would give evidence inconsistent with the evidence of other witnesses, as was the case in Shaw.
During a voir dire at the 2005 trial, Mr Manga confirmed his earlier statement to the police that Ms Marshall had arranged to meet him at a station to discuss the evidence he would give against Chimirri. When this was put to Ms Marshall on voir dire she said that she had met Mr Manga at a railway station, but that all that she had said to him was that he should tell the truth about the events which led to the charges.
Standing alone, the conflict between Mr Manga and Ms Marshall’s evidence as to what was said at the railway station might not have been a sufficient basis for the prosecutor’s conclusion that Ms Marshall should not be called as a Crown witness because she would be prepared to lie on oath. However when combined with Ms Marshall’s admission on voir dire that she had gone with the applicant’s mother to visit one of Mr Manga’s former de facto partners, and Mr Manga’s evidence that his partner had been asked to persuade Mr Manga to ‘drop the charges’, we consider the prosecutor had a sufficient basis for concluding that Ms Marshall was prepared to do whatever she could to assist the applicant, with whom she had had a long romantic relationship.
Admittedly the case is not as clear cut as Tran v Magistrates’ Court of Victoria,[21] where the prosecutor’s decision not to call an eye-witness was based on the witness’s
own statement that he would ‘fix you guys’ and ‘I don’t care what I say as long as Tien gets off’. Ms Marshall did not say that she would not give truthful evidence.
[21][1998] 4 VR 294 (‘Tran’).
Nor is this case on all fours with R v J (No 2),[22] where the Court held that the prosecutor had not breached his duty by failing to call as a witness the wife of a man accused of sexual offences against his daughter. In that case the wife, who may have been complicit in the offending, had refused to be interviewed by the Crown.
[22][1998] 3 VR 602. In that case there was also a possibility that if she had been called by the Crown she might have been declared hostile and cross-examined to the detriment of the accused.
As was the case in Tran and R v J(No 2) however, there were ‘identifiable circumstances’[23] casting doubt on Ms Marshall’s evidence. The prosecutor was entitled to take the view that it would not be in the interests of justice to call Ms Marshall as a witness, even if only for the purpose of permitting her cross-examination by defence counsel. Ms Marshall’s admissions that she had arranged a meeting with Mr Manga and had visited his former de facto wife with the applicant’s mother cast serious doubts on her reliability.[24] That doubt was reinforced by the finding of guilt made against her for interfering with a witness in other proceedings.[25]
[23]Apostilides (1984) 154 CLR 563, 576.
[24]Although the judge might however have given limited leave to cross-examine without the witness being declared hostile see R v Thynne [1977] VR 98, 101 (Young, CJ, McInerney and Newton JJ) citing Dixon J in R v Neal [1947] ALR 616, though that related to cross-examination relating to facts in a prior statement.
[25]The prosecutor spoke of Ms Marshall’s ‘prior convictions’, but had previously said that a court document showed that the count of harassing a witness had against it the entry ‘Without conviction adjourned to 19/07/2001’.
Even if we are wrong in concluding that the prosecutor was not required to call Ms Marshall, grounds 2 and 3 cannot succeed unless the failure to call her, when considered in the context of the whole trial, gave rise to a miscarriage of justice.
Defence counsel at the trial knew that Ms Marshall’s evidence at the committal and the evidence she gave on her voir dire, was likely to assist the applicant. He could have called her as a witness.
The circumstances are readily distinguishable from the recent decision of this Court in R v Jensen,[26] where it was held that a miscarriage of justice had occurred because of the prosecutor’s failure to call the applicant’s brother as a witness in the applicant’s trial for murder. An application had been made to do so during the trial but the learned trial judge had ruled that it was for the prosecutor to form his own opinion as to whether the unreliability and apparent partiality of the accused’s brother had rendered him unsatisfactory as a witness for the Crown.
[26][2009] VSCA 266 (‘Jensen’).
It was held that although it was not the trial judge’s role to determine the validity of the prosecutor’s decision,[27] the appeal should be allowed. The factors regarded as giving rise to a miscarriage were as follows. First, the accused’s brother’s name appeared on the presentment and he was expected to give evidence. Secondly, the defence case was that the deceased had killed himself due to depression, and the brother was able to give evidence that the deceased had been depressed and behaving irrationally in the time leading up to his death. Thirdly, defence counsel wished to cross-examine the brother in order to show that he had more reason than the applicant did to kill the deceased.
[27]Apostilides (1984) 154 CLR 563, 575 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ).
The learned trial judge in that case had referred to a number of matters which were said to indicate that the Crown was justified in refusing to call the brother, because he was unreliable. The Court of Appeal considered that these matters did not clearly establish that the brother was an unreliable witness, within the meaning of Apostilides.[28] The Court said that:
In our view, such indications of unreliability as there may be in the recordings fall a long way short of those which were said to be sufficient in Tran,[29] where the prosecutor had spoken to the putative witness and he had made plain that he did not intend to tell the truth, or those which were said to be enough in R v J (No 2),[30] where it was part of the Crown’s case that the putative witness had condoned the offences, and she had stated that she would refuse to answer questions on the grounds of privilege against self incrimination. Here, the most that one could take out of the recordings is some degree of suspicion that Colin Jensen might not have been completely truthful in all aspects of his evidence.[31]
[28]Ibid.
[29]Tran [1998] 4 VR 294. See also Shaw (1991) 57 A Crim R 425, 436 (Murphy J).
[30][1998] 3 VR 602, 623 (Winneke P and Charles JA).
[31]Jensen [2009] VSCA 266, [70].
The Court held that the failure of the Crown to call the accused’s brother resulted in a material miscarriage of justice:
For, as counsel for the Crown fairly conceded, even if the Crown’s failure to call Colin Jensen did no more than deprive the jury of a different view of the deceased’s state of mind and his relationship with the applicant, it nevertheless deprived him of a chance of acquittal to which he was entitled. When one adds that it also deprived him of the ability to cross-examine Colin Jensen as to the latter’s motive and opportunity to kill the deceased, the injustice was very substantial.
It is true that defence counsel could have called Colin Jensen as a defence witness and, as defence counsel frankly admitted in his evidence before us, he may have overlooked the opportunity to renew his application for Colin Jensen to be called for cross-examination at the end of the Crown case. But, as Apostilides shows, the fact that the defence was able to call Colin Jensen as a defence witness does not overcome the miscarriage of justice which occurs as a result of the Crown’s refusal to call a material witness, and it has not been suggested that the judge’s attitude would have been any different at the end of the Crown case than it was at the beginning.[32]
[32]Ibid [77]-[78].
The circumstances of this case differ substantially from those in Jensen.[33] Ms Marshall was not a potential alternative defendant. She gave favourable evidence for the applicant at the committal and in the 2005 voir dire. In discussion at the 2005 trial his Honour commented that ‘it seems to me that there’s absolutely no expectation that she’s going to give evidence other than she’s going to give evidence which is consistent’ with her evidence at the committal. We do not consider that there is any realistic possibility that defence counsel’s inability to cross-examine Ms Marshall resulted in an unfair trial for the applicant.
[33][2009] VSCA 266.
Further, there was a significant possibility that the interests of justice would not have been served if she was called as a Crown witness and the Crown was unable to cross-examine her about her alleged attempts to persuade Mr Manga to give evidence which was favourable to the applicant.
As we have said, counsel for the applicant relied upon Dyers[34] in support of his claim that a miscarriage of justice had occurred. In that case the trial judge had given a Jones v Dunkel[35] direction about the inferences which could be drawn from the failure of the Crown and of the accused to call particular witnesses. He also directed the jury not to speculate on the evidence which might have been given by a witness, in effect contradicting his previous Jones v Dunkel[36] direction. The High Court[37] held the judge had misdirected the jury because, as a general rule, a Jones v Dunkel[38] direction should not be given in a criminal trial.[39]
[34](2002) 210 CLR 285, 293 (Gaudron and Hayne JJ).
[35](1959) 101 CLR 298.
[36]Ibid.
[37]Gaudron, Kirby, Hayne and Callinan JJ, McHugh J dissenting.
[38]Ibid.
[39]Buckland [1977] 2 NSWLR 452 was decided before Apostilides (1984) 154 CLR 563 and also concerned the directions which should be given about the failure to call a witness.
In the trial giving rise to this appeal, the learned trial judge sought guidance from counsel as to the directions he should give the jury about the relevance of Ms Marshall’s failure to give evidence. He rejected the submission of counsel for the Crown that he should tell the jury that Ms Marshall was not called as a prosecution witness because she was not regarded as an honest witness and appropriately[40] directed the jury as follows:
I want to now turn to and give you a direction as to the absence of the potential witness, Kylie Marshall. You will recall that during the cross-examination of the informant by Mr Lavery on behalf of Mr Chimirri, he asked questions about whether Kylie Marshall had made a statement and whether she was, in fact, available to be called as a witness. Mr Bonnici said that she had made a statement and was available to be called as a witness.
The direction of law I give you is this. The fact is that Ms Marshall is not a witness in this trial. You are required to determine the facts in this case on the evidence led before you in this court. You are not permitted to speculate or guess as to what evidence Ms Marshall might or might not have given if she was called as a witness to give evidence. I direct you that you are not permitted to draw any adverse inference against the Crown because Kylie Marshall is not a witness in this case. There may be many reasons why she has not been called as a witness. You are not permitted to speculate as to what they may be. You are not permitted to speculate as to what evidence she may or may not have given if she was called as a witness before you. Further and importantly, I direct you that you are, of course, not to draw any adverse inference against Mr Chimirri because Ms Marshall was not a witness in this trial. The accused does not have to prove anything in a criminal trial. The onus is on the Crown to prove their case beyond reasonable doubt. Your role, your function, is to determine the facts as you find them on the evidence that is led before you in this case in this court room in the way that I have directed you. You are not permitted to speculate and you are not permitted to guess and you are not permitted to allow conjecture to affect your assessment of the evidence.
[40]Dyers (2002) 210 CLR 285, 294 (Gaudron and Hayne JJ).
Accordingly grounds 2 and 3 must fail. It is unnecessary to discuss ground 4, which was abandoned.
For these reasons we would dismiss the appeal against conviction.
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