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)

1. 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.

2. 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.

3. Counts 4, 5, 6 and 7 all relate to possession on the same date but relate to

   different material in different locations.

4. Count 8 relates to an entirely different possession count and alleges a

   different date entirely.

5. 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.

1. 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.

1. 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 reasons for not calling her.

1. As Mr Elliott for the accused said, the case is rather an unusual one in that it

would appear that the only way that the accused believes that he can raise
the possibility at trial that this material was planted by Ms Myles is for her

to be called and cross-examined about that possibility.

1. Mr Elliott was careful to say that he had no instructions that it was

   Ms Myles who put the material there. I understand that his client’s position

   is that he did not put it there and therefore somebody else did.

2. The evidence at the committal hearing was that Ms Myles was able to access

   the safe. She said initially that she knew the code to access the safe. Later

she said that although she did not exactly know it because the code changed
from time to time, she guessed what the code number was because it was a

number which the accused used on other occasions as his PIN number
whenever he needed a code number.

1. In any event, the prosecutor has declined to call her and the question is

whether, bearing in mind that Ms Myles is a witness who gave evidence at
the committal, I ought to stay the trial as being unfair.

1. Applications of this kind are quite rare. I know of only one similar case

where an application for a stay was brought unless the prosecution presented
a particular witness to the Court for cross-examination by an accused. It is
not suggested, as I understand Mr Elliott, that the witness would be brought
by the Crown to give evidence for the Crown; simply that the witness should

be made available for cross-examination by counsel for the accused.

1. The case to which I refer is R v Busson[1]. It is an unreported decision of

   Bleby J in the Supreme Court of South Australia. In that particular case the

   person whom the accused wished to cross-examine was a person who had

originally been jointly presented with the accused on a charge of murder.
The witness eventually pleaded guilty to the charge of murder and the

accused wished the Crown to call the witness, whose name was Slade, for
the purposes of cross-examining him.

1. The application was refused on the basis that the judge did not think that the

   interests of justice required 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 Slade. I thought that rather odd. In any event,

that was the ruling and the learned judge referred to the relevant authorities
including R v Apostilides[2], Whitehorn v The Queen[3] and so forth.

1. That the application is a proper one, I think, cannot be denied in the sense

   that the application has been made prior to trial and I see in the case of R v

   Kneebone[4], again an unreported judgment, this time of Greg James J with

whom Spigelman CJ agreed, where it was said that should there be a
problem as to whether a witness should be called or not, a ruling should be

sought preferably in advance or alternatively immediately at the trial[5].

1. The relevant principles are stated in R v Apostilides[6]. As that case makes

   clear, the responsibility for deciding which witnesses the Crown intends to call is a responsibility which the prosecutor alone bears. As the trial judge, I may, but I am not obliged to question the prosecutor in order to discover

   the reasons which would have lead the prosecutor to decline to call a

   particular person.

2. I am not called upon to adjudicate the sufficiency of those reasons.

   Nevertheless the reasons have been given. As I say, I am not called upon to

   adjudicate the sufficiency of those reasons.

3. The third proposition is that whilst at the close of the Crown case I may

   properly invite the prosecutor to reconsider such a decision and to then have

   regard to the implications as they then appear to me at that stage of the proceedings, I cannot direct the prosecutor to call a particular witness.

4. But I may, when charging a jury, make such comment as I then think

appropriate with respect to the effect which the failure of the prosecutor to
call the witness, would appear to have had on the course of the trial. That
comment, if any, will be affected by such information as to the prosecutor’s
reasons for his decision as the prosecutor thinks fair and proper to divulge to
me as the trial judge.

1. Save for the most exceptional circumstances, I as the trial judge, should not

myself call persons to give evidence and it is not suggested in this case that
I should.

1. One of the observations made by the Court in the joint judgment of five

   justices, namely, Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ is this[7]:

   “A decision whether or not to call a person whose name appears on
   the indictment or 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.”

2. I take it from that that it should only be in a relatively rare case that the

   prosecutor would not make available to the defence a witness who the

   defence wishes called, particularly a witness whose evidence was given at

   the committal.

3. Nevertheless it is the prosecutor’s decision not to call this particular witness

   and I can understand the reasons why.

4. It was said by Greg James J in the case of R v Kneebone[8], to which I have

previously referred, there is an advisability, if not a necessity, for a
conference by a prosecutor before a decision is made not to make the
witness available. The prosecutor has told me in this case that he has not
examined the witness again since the committal but he has given reasons
why he has made his decision not to call the witness and it is clear that
counsel for the accused is also of the view that the witness is unreliable.

1. I do not think therefore that the failure of the prosecutor to conduct a further

   conference is necessarily important in this particular case.

[26] The other thing that needs to be observed is that this is not a case where

the prosecutor has decided not to call the witness on the basis that her

evidence would be unreliable and that her evidence would unfairly assist the defence. On the contrary, the evidence, if called, has a danger attached to it

which is quite different. The danger is that the evidence would unfairly
assist the Crown. So that places the case in a somewhat exceptional position
as well, not that in principle it makes any difference. If the witness is

plainly untruthful then the prosecutor, provided he believes that that is so on

reasonable grounds, should not call the witness.

1. So much is evident from the Bar rules as well. Referring to the New South

   Wales Bar Rules, as they then existed, Greg James J referred to a rule that a

   prosecutor is not obliged to call evidence from a particular witness if the

prosecutor believes on reasonable grounds that the testimony of that witness
is plainly untruthful or is plainly unreliable by reason of a witness being in

the camp of the accused[9].

1. Plainly the witness is not in the accused's camp. On the contrary. The

witness is, so it is said, plainly unreliable and I think in those circumstances
the witness ought not to be called.

1. It was suggested however that the witness ought to be made available for

cross-examination by the accused. I do not think that that is so. If the
witness is unreliable then the witness is unreliable and it would not be right
for an unreliable witness to be called solely for the purpose of attempting to

destroy the Crown case through suggestions of the kind which are proposed

in this particular case.

1. Again in the case of R v Kneebone[10], to which I have referred, there is

   reference to a number of propositions laid down by the Court of Appeal in England in R v Russell-Jones[11]. One of the passages to which Greg James J

referred is paragraph 7 of the propositions laid down by the Court of Appeal
which reads:

“A prosecutor properly exercising his discretion will not therefore be
obliged to proffer a witness merely in order to give the defence
material with which to attack the credit of other witnesses on whom
the Crown relies. To hold otherwise would, in truth, be to assert that
the prosecution are obliged to call a witness for no purpose other
than to assist the defence in its endeavour to destroy the Crown’s
own case. No sensible rule of justice could require such a stance to
be taken.”

1. I think, although that proposition dealt with a slightly different point, that

   this proposition applies equally here. The purpose of cross-examination of

   this witness is to suggest that this witness was the person who placed the

material in the safe. There is no evidence in fact that this occurred. The
witness is most unlikely to agree to it but even if she did agree to it, given
that she is a totally unreliable witness and both parties say she is unreliable,

it would be unfair to the Crown for such an admission to be put before the

jury.

[32] In the circumstances, I refuse the application.

------------------------------

[1] (2007) SASC 179, unreported

[2] (1984) 154 CLR 563

[3] (1983) 152 CLR 657

[4] (1999) NSWCCA 279

[5]  see para [56]

[6] (1984) 154 CLR 563

[7]  at page 576

[8] [1999] NSWCCA 279 at [49] and [51]

[9] R v Kneebone [1999] NSWCCA 279 at [44]

[10] [1999] NSWCCA 279 at [46]

[11] (1995) 3 All ER 239