R v Ferguson

[2000] TASSC 151

[2000] TASSC 151

CITATION:                 R v Ferguson [2000] TASSC 151

PARTIES:  R
  v
  FERGUSON, John Henry

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  114/2000
DELIVERED ON:  1 November 2000
DELIVERED AT:  Hobart
HEARING DATES:  23 - 26 October, 1 November 2000
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Course of evidence, statements and addresses - Addresses - Final address of counsel for Crown - Generally - Right of Crown to address in reply - Whether evidence adduced for accused person - Documents tendered by defence in cross-examination.

Carter v R (1997) 19 WAR 8, followed.
Criminal Code (Tas), s371(d).
Aust Dig Criminal Law [775]

REPRESENTATION:

Counsel:
             Crown:  C J Rheinberger
             Accused:  M J Brett
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Clarke & Gee

Judgment Number:  [2000] TASSC 151
Number of Paragraphs:  15

Serial No 151/2000
File No 114/2000

THE QUEEN v JOHN HENRY FERGUSON

REASONS FOR RULING  BLOW J

1 November 2000

1. On 25 October 2000, I gave a ruling during the trial of the accused that his counsel should make his closing address to the jury before that of counsel for the Crown.  I said I would give my reasons at a later date.  These are my reasons for that ruling.

1. During the cross-examination of the principal Crown witness, counsel for the accused produced and tendered a letter written by that witness to the accused.  The accused gave evidence himself, but did not adduce any other evidence.  At the conclusion of his evidence, each counsel submitted that the other should make the first closing address to the jury. 

1. The Criminal Code, s371, provides as follows:

"371 ¾ The following rules shall apply to the proceedings upon the trial of an indictment: ¾
…

(b)  at the close of the evidence for the prosecution an officer of the court shall ask the accused person whether he intends to adduce evidence in his defence;

(c)  if the accused person has no witnesses to call he may himself give evidence on oath (but by so doing shall not be deemed to adduce evidence), and thereupon, or if he does not give evidence ¾

(i)if he has no counsel, he may address the jury in his own defence; or

(ii)if he has counsel, the counsel for the Crown may, if he thinks it a proper case in which so to do, make a second speech summing up the Crown's evidence, and commenting on the evidence of the accused, if any; and the counsel for the accused may then address the jury on his behalf;

(d)  if the accused person adduces evidence ¾

(i)upon the close of the evidence for the Crown he or his counsel may address the jury for the purpose of opening the case for his defence, and call his evidence, giving his own evidence first if he desires to give evidence personally;

(ii)after the close of such evidence he, or his counsel, may address the jury, summing up his defence; and

(iii)counsel for the Crown may then reply;

…".

1. It can be seen at once that, in the drafting of these provisions, little or no attention has been paid to the situation where an accused person adduces evidence not by calling witnesses, but by tendering one or more exhibits. Evidence can be adduced for an accused person by tendering exhibits either during the cross-examination of a prosecution witness, or during the cross-examination of a co-accused or a witness for a co-accused, or when the accused is giving evidence. The question that s371(b) requires an officer of the court to ask is quite inappropriate if a defence exhibit has already been tendered and its tendering affects the order of closing addresses. If an accused person has no witnesses to call but proposes to adduce evidence in the form of an exhibit, each of s371(c) and (d), read literally and in isolation, could be interpreted as applying to him or her.

1. Mr Brett, for the accused, submitted that s371(d), in addressing the situation "if the accused person adduces evidence", read in context, was referring only to the situation where the accused person calls one or more witnesses. The wording of s371(b) and (c) lends some support to that interpretation. If only the calling of witnesses makes a difference to the order of closing addresses, and the tendering of exhibits does not, then it would always be perfectly appropriate for an officer of the Court to ask the accused at the close of the prosecution case, as required by s371(b), whether he or she intends to adduce evidence in his or her defence. That would also be consistent with giving s371(c) a literal interpretation, ie, to interpret it as providing that Crown counsel should address before defence counsel whenever the accused "has no witnesses to call". Mr Brett relied on a comment by Green CJ in R v Morley [1977] Tas SR 42. That case concerned the question whether, by eliciting in cross-examination of a co-accused material favourable to his client, defence counsel had adduced evidence within the meaning of s371(d), with the result that the order of addresses should be reversed. At 43, Green CJ said the following:

"I accept that in some contexts the expression 'adducing evidence' has a broad meaning which could embrace the giving of evidence by an accused himself and could possibly include eliciting evidence by cross-examination. However, it seems to me clear that the word as used in s 371 of the Code must be given a more limited meaning.  First of all, its scope is clearly cut down by par (c) of s 371, which provides that by giving evidence himself an accused person does not adduce evidence. In my view, the word is further limited by par (c) and par (d) of that section which appear to equate adducing evidence with the calling of one's own witnesses."

1. The interpretation suggested by Mr Brett is also consistent with the rule of statutory interpretation whereby an ambiguity in a penal or criminal statute is resolved by adopting an interpretation favourable to the subject in preference to an interpretation favourable to the Crown.  However, that rule is very much a rule of last resort, to be applied only if the intention of the legislature cannot be established by the various rules of interpretation and aids to construction that are applicable to all statutes.  See Pearce and Geddes, Statutory Interpretation in Australia, 4th ed 226 - 227, par917.

1. Mr Brett's submission had much to commend it, but I decided to reject it in the light of Carter v R (1997) 19 WAR 8, a decision of the Western Australian Court of Criminal Appeal.

1. A thorough historical analysis in relation to the order of closing addresses at criminal trials was undertaken in that case at 38 - 46.  Before the enactment of any criminal codes, and before any statutory law reform in relation to the order of closing addresses in non-code jurisdictions, it was a well established rule that the tendering of a document during the cross-examination of a Crown witness led to an accused person losing the right of reply: R v Edwards (1837) 8 Car & P 26; 173 ER 384. In non-code jurisdictions there is an unwritten but well established rule of practice that an accused person generally loses "the last say" in such a situation: R v Lee [1950] VLR 413 at 417; R v Scriva (No 1) [1951] VLR 290. The provisions of the Criminal Code (WA) as to closing addresses were derived from a statute enacted in Western Australia in 1871. The Court of Criminal Appeal concluded in Carter, at 71, that the legislature had intended to maintain the pre-existing practice.

1. Subsequently, in Director of Public Prosecutions Reference Under s693A of the Criminal Code; Re Y (1997) 19 WAR 47, the Western Australian Court of Criminal Appeal took the view that the eliciting of favourable evidence from a co-accused in cross-examination by defence counsel constituted an adducing of evidence by which the right of last reply was lost. (R v Morley (supra), in which Green CJ ruled to the contrary, was not cited in the judgment or in argument.)  Whilst that case did not concern the tendering of an exhibit, it supports the proposition that, for the purposes of a legislative provision as to the order of closing addresses, a reference to adducing evidence should not be interpreted as referring solely to the calling of defence witnesses.  In that case, the relevant provision was a paragraph in the Criminal Code (WA), s637, which read "If evidence is adduced for an accused person, the counsel for the Crown is entitled to reply."

1. There are some differences between the Tasmanian and Western Australian Code provisions.  In Western Australia, the Code does not confer a right on an accused person or his her counsel to make a closing address if no evidence is adduced by or for that accused, though there is a practice in such a case of allowing the accused or his or her counsel the "last say": Buck v R [1983] WAR 372 at 378. In Western Australia, the giving of evidence by an accused person is treated as the adducing of evidence by him or her, with the result that the Crown has the "last say".

1. In Carter, the Court reasoned that that State's Criminal Code must, if possible, be interpreted according to its terms without resort to any presumption that its provisions reflect the common law either at the time of its enactment or subsequently, but that it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which it previously acquired a technical meaning, or on some such special ground.  Their Honours referred to the judgments of McHugh and Kirby JJ in R v Barlow (1997) 188 CLR 1. Their approach was clearly correct. The relevant section was incomplete in its coverage of the various situations that could arise as to the giving and adducing of evidence. The Court took the view that some of the terms used in the section had acquired a special meaning, and that there was every indication that there was the intent to incorporate in the Code the practice prevailing at the time of its enactment. The Court concluded that it was the intention of Parliament to preserve the practice as to the order of closing addresses that existed at the time the Code was enacted, and before the 1871 Act was enacted.

1. In Tasmania, it seems that there was no statutory provision as to addresses to the jury until the enactment of the Criminal Law Procedure Act 1881 (45 Vict No 14), s5, which provided as follows:

"If any prisoner or prisoners, defendant or defendants, shall be defended by Counsel, but not otherwise, it shall be the duty of the presiding Judge, at the close of the case for the prosecution, to ask the Counsel for each prisoner or defendant so defended by Counsel whether he or they intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the Counsel for the prosecution shall be allowed to address the jury a Second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, or defendant or defendants; and upon every trial for felony or misdemeanor, whether the prisoners or defendants, or any of them, shall be defended by Counsel or not, each and every such prisoner or defendant, or his or their Counsel respectively, shall be allowed, if he or they shall think fit, to open his or their case or cases respectively; and after the conclusion of such opening or of all such openings if more than one, such prisoner or prisoners, or defendant or defendants, or their Counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded to sum up the evidence respectively; and the right of reply, and practice and course of proceedings, save as hereby altered, shall be as at present."

1. It can be seen that that section made no specific provision as to the consequences of tendering a document during the cross-examination of a Crown witness.  The final words of the section, however, were applicable to that situation, providing that "the right of reply and practice and course of proceedings, save as hereby altered, shall be as at present".  That section is in identical terms to the 1871 Western Australian provision, and to the Criminal Procedure Act 1865 (Imp), s2.  It remained in force in Tasmania until the enactment of the Criminal Code in 1924.

1. In my view, the differences between the wording of Tasmania's s371 and the equivalent provisions in Western Australia are immaterial. There is no reason to distinguish Carter. The wording of s371 indicates that the Tasmanian Parliament, in enacting that section, was not intending to depart from the pre-existing practice, which had been preserved by the Criminal Law Procedure Act 1881, s5.  If Parliament had wished to abrogate the rule of practice whereby an accused person lost the "last say" if his counsel tendered an exhibit during the cross-examination of a Crown witness, it would have used language that made that change clear. There is nothing in the report of R v Morley (supra) to suggest that the provisions of the 1881 Act and the practice before its enactment were drawn to the attention of Green CJ in argument.  In the circumstances it is appropriate to treat that case as authority only in relation to the situation where favourable oral evidence is elicited in cross-examination by defence counsel.  In relation to the tendering of defence exhibits during the cross-examination of Crown witnesses, I believe that Carter is indistinguishable, was correctly decided, and should be followed. In my view, the tendering of a defence exhibit during the cross-examination of a Crown witness constitutes the adducing of evidence for the purposes of s371(d), so that in this case counsel for the accused was required, pursuant to that provision, to address the jury before counsel for the Crown.

1. There is authority for the proposition that s371 and its Western Australian equivalent lay down rules which are directory as distinct from mandatory, and that a trial judge has a discretion to depart from the statutory order of addresses: Masnec v R [1962] Tas SR 254 at 268; Buck v R (supra) at 378; Carter (supra) at 44 - 46. Such a discretion should be exercised having regard to (inter alia) the nature and quality of the documents (or other exhibits) produced and the extent to which they advanced the accused's case: Carter at 46. However, departure from the general rule is only justified by exceptional circumstances: Masnec at 268. In this case, the letter tendered on behalf of the accused was of such a nature that it was likely to have a significant impact on the credibility of the principal Crown witness. Mr Brett told me that at the time of tendering it he expected to lose the right of last reply as a result, and that he had subsequently researched the point and decided that there was a strong argument to the contrary. He did not submit that I should exercise any discretion in favour of his client, but based his submission on the wording of s371. In those circumstances, I decided that it was not appropriate to exercise the discretion in favour of the accused.