R v Hair - [2009] NTSC 9

R v Hair [2009] NTSC 9

PARTIES: THE QUEEN
v
BRENDON ANDREW HAIR
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 20713307
DELIVERED: 25 March 2009
HEARING DATES: 24 March 2009
JUDGMENT OF: MILDREN J
CATCHWORDS:
CRIMNAL LAW – practice – evidence – failure by Crown to call witness – witness unreliable – defence wish to cross-examine witness – defence agree witness is unreliable – whether grounds for stay made out – stay refused
Citations:
Referred to:
R v Apostilides (1984) 154 CLR 563
R v Busson (2007) SASC 179, unreported
R v Kneebone (1999) NSWCCA 279
R v Russell-Jones (1995) 3 All ER 239
Whitehorn v The Queen (1983) 152 CLR 657
REPRESENTATION:
Counsel:

Plaintiff: T Berkley
Defendant: P Elliott
Solicitors:

Plaintiff: Office of the Director of Public
Prosecutions
Defendant:
Judgment category classification: B
Number of pages: 9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Hair [2009] NTSC 9

No. 20713307

BETWEEN:
THE QUEEN
Plaintiff

AND:
BRENDON ANDREW HAIR
Defendant

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 25 March 2009)

This is an application by the accused, Brendan Andrew Hair, for a stay of
proceedings. Mr Hair is facing eight counts. His trial is due to commence
shortly.
Count 1 relates to possession of child abuse material. Counts 2 and 3 relate
to distributing child abuse material to persons unknown. Counts 4, 5, 6, 7
and 8 are all possession counts.
Counts 4, 5, 6 and 7 all relate to possession on the same date but relate to
different material in different locations.
Count 8 relates to an entirely different possession count and alleges a
different date entirely.
The application is based upon the position of the Crown in relation to the

witness, Pauline Monica Myles, who is the accused’s former wife. The
evidence that Myles gave at the committal hearing related amongst other
things to finding discs containing child abuse material in a safe in the
accused’s room which she accessed, and which she said she opened on a
computer in the room. Subsequently she informed the police about this and,
as a result of that, inquiries were made, search warrants obtained and
various material found.

Both parties agree that Ms Myles is an unreliable witness. However the

accused wishes that Ms Myles be called by the Crown in order to cross-
examine her, as I understand it, with a view to showing that she had a
motive for wanting to place the child abuse material in the accused’s
possession without his knowledge and the opportunity to do so, at least in
relation to some of the counts.

The prosecutor tells me he has made a decision not to call Ms Myles and he
has given me the reasons which are now on the transcript and which I will

not now go into in any detail. Suffice it to say that I consider that the
reasons are probably good…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hair

Details

AGLC: R v Hair [2009] NTSC 9
Case: [2009] NTSC 9
Decision Date: 25/03/2009

CaseChat Overview and Summary

The case of R v Hair [2009] NTSC 9 concerns an application by the accused, Brendon Andrew Hair, for a stay of proceedings. Hair faced eight counts, including possession and distribution of child abuse material. The application was based on the Crown's decision not to call a particular witness, Pauline Monica Myles, Hair's former wife, who was deemed unreliable by both parties. Hair sought to cross-examine Myles to suggest she had planted the material in his possession without his knowledge. The legal issue before the court was whether the Crown's decision not to call Myles was justified and if Hair's right to a fair trial had been compromised.

Mildren J held that the decision to call witnesses lies solely with the prosecutor. The judge emphasised that while the prosecutor should consider fairness to the accused, they were not obliged to call a witness merely for the purpose of allowing the defence to attack the credibility of other witnesses. Mildren J cited several precedents, including R v Apostilides, Whitehorn v The Queen, and R v Russell-Jones, which support the principle that the prosecutor is not required to call a witness for cross-examination solely to assist the defence. The court found that Myles was plainly unreliable, and calling her would unfairly assist the Crown. Therefore, the application for a stay was refused.

This decision underscores the importance of the prosecutor's discretion in witness selection and the limitations on judicial intervention in this area. The court concluded that the interests of justice did not require the prosecutor to call Myles, given her unreliability and the lack of evidence to support Hair's claims.

Orders