R v Joseph No. DCCRM-97-1069 Judgment No. D79

[1999] SADC 79

R v JOSEPH
[1999] SADC D79

Judge Robertson
Criminal

1. This is an application for a permanent stay of proceedings.  The accused is charged with Rape.  The trial commenced on 1 June 1999.  During that day the complainant completed her evidence.  The hearing did not continue on the second day due to the absence of the accused.  During the morning of the third day Counsel for the Prosecution announced that he did not intend to call a witness by the name of William Judge.  He said that he had formed the view that William Judge was an unreliable, untrustworthy and untruthful witness.  He provided details of the basis upon which he reached that conclusion.  Included in those details was information which he had received since the trial began.  Mr Muscat said that information together with other information in his hands prior to the commencement of the trial have led to the decision which I have referred to. 

2. Until the afternoon of 2 June 1999 the Crown Prosecutor had intended to call Mr Judge.  At that time he reached the decision not to call him.  He then informed Mr Lyons, Counsel for the accused, of his decision and the basis for the decision.  Counsel for the accused, during the course of the trial had proceeded in the belief that Mr Judge would be called.   Mr Muscat did not dispute that this was a reasonable belief to hold.  It is the Crown’s decision not to call Mr Judge that forms the basis of this application.  Mr Muscat, counsel for the Crown, also stated that if, as a result of this decision this trial was declared a mistrial then the Crown may not be prepared to call Mr Judge, for the reasons he outlined, on any retrial of the accused.

3. I pause briefly to mention that the accused stood trial on the same charge, the subject of these proceedings, on 11 May 1999.  During the first day of the trial the complainant completed her evidence.  Although he was not named on the Information William Judge was called by the Crown as a witness.  By the end of the day he had completed his examination in chief and was part way through being cross-examined.  Due to the illness of the accused there was no further evidence taken.  As a result of the delay caused by the illness of the accused I declared a mistrial and discharged the jury.

4. Early in his submissions on this application, Mr Lyons intimated that the accused had been prejudiced by the decision of the Crown in refusing to call Mr Judge.   He stated that his cross-examination had been constructed and presented, in part, on the assumption that Mr Judge was to be called by the Crown.  On hearing this Mr Muscat conceded that the accused could not then receive a fair trial during this trial and indicated that the appropriate course was for a mistrial to be declared.  Mr Lyons persisted with his application for a permanent stay of proceedings.  However, he indicated that if he was unsuccessful then he would be making an application for a mistrial.

5. In dealing with an application for a permanent stay of proceedings the authorities make it plain that the power should be exercised “only in exceptional circumstances” or “sparingly and with the utmost caution” (Jago v District Court (NSW) (1989) 186 CLR 23 per Mason CJ at 31 and Gaudron J at 76). The principle upon which a permanent stay is to be granted is expressed by Mason J in Jago at page 34:-

   “To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.

6. Mr Lyons submitted that in refusing to call Mr Judge during this trial or at any subsequent trial, if this trial is aborted, deprives the accused to a right to a fair trial.  Accordingly, said Mr Lyons, there should be a permanent stay of proceedings.  He submitted that Mr Judge is a material witness and therefore should be called by the Crown.  He further submitted that in not calling him it placed the defence in the position of having to decide whether to call him.  He also said, that the defence were deprived of the opportunity of cross-examining him.  It was Mr Lyons’ submission that all these factors created an unfairness to the accused to such an extent that it would deprive him of a fair trial.

7. Mr Lyons referred to the decision of Houston v Crannage (1989) 42 A Crim Rep 446 to support his proposition that where a material witness is not called then that is grounds for a permanent stay.  There can be no doubt that Mr Judge is a material witness.  I accept that in appropriate circumstances the failure to call a material witness could be grounds for a permanent stay.  However, it is important to recognise that a relevant factor in the decision to grant a permanent stay in Houston was that the Crown had not suggested that the witness was not called because she was untrustworthy, unreliable or otherwise incapable of belief.  Mr Lyons also referred to the decision  Queen v Shaw (1991) 57 A Crim Rep 425 in support of the proposition that the failure by the Crown to call a material witness deprives the defence of the opportunity to cross-examine that witness.  Further, that for the Crown to deprive the defence of that opportunity and then to proceed to cross-examine that witness when called by the defence (as occurred in that case) had the effect of placing the defence unfairly at a disadvantage. 

8. It seems to me that the application raises three questions.  The first is whether a permanent stay should be granted on the basis that the Crown’s refusal to call Mr Judge of itself creates an unfairness of the nature which warrants a permanent stay of proceedings.  Secondly, if it does not warrant a permanent stay in those circumstances then is there an appropriate remedy for the acknowledged prejudice suffered by the Defence by the timing of the decision not to call Mr Judge.  By prejudice I refer to Mr Lyons statement that his cross-examination was undertaken on the assumption that Mr Judge would be called.  Thirdly, if the remedy is the declaration of a mistrial which leads to an order that the accused stand trial again then is that of itself an abuse of process which justifies a permanent stay of proceedings.

9. In dealing with the first issue it must be acknowledged that the Crown Prosecutor bears the responsibility of deciding whether to call a witness or not (The Queen v Apostilides (1984) 154 CLR 563 at 575. As Dawson J said in Whitehorn v The Queen (1983) 152 CLR 657 at 674:

   “Nevertheless, there is good guidance in the cases for what constitutes a material witness.  All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based.  In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case.  However, 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”.

   Emphasis added.

Apostilides also pointed out (at page 575) that the trial Judge is not called upon to adjudicate the sufficiency of reasons given by the Crown Prosecutor for not calling a witness. In the end if the decision of the prosecutor not to call a witness is seen to give rise to a miscarriage of justice then a conviction will be set aside.

1. Here, the Crown Prosecutor has indicated that he has formed the view that Mr Judge is an unreliable, untrustworthy and untruthful witness.  He has provided reasons which led him to reach that conclusion.  It is not my task to adjudicate upon the sufficiency of those reasons.  That decision standing alone cannot, in my opinion, be grounds for a permanent stay.  The Crown Prosecutor has exercised a discretion which is clearly available to him  In those circumstances, the refusal to call Mr Judge in this trial or any other trial of the accused is not of itself a valid ground for ordering a permanent stay of proceedings.

2. I now turn to the second question.  It is not in dispute that the timing of the decision to refuse to call Mr judge has the effect that the accused cannot receive a fair trial in the present proceedings for the reason I indicated earlier.  That being the case then it seems to me that the question which then arises is whether there is a remedy which can overcome the fact that the accused cannot receive a fair trial in the present proceedings.  The obligation of a Court to consider whether there is an appropriate remedy is referred to is by Brennan J in Jago at page 47:-

   “When an obstacle to a fair trial is encountered, the responsibility cast on a trial Judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exerciser the jurisdiction to hear and determine the issues.  The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

   More radical remedies may be needed to prevent an abuse of process”.

   (Also see: Toohey J in Jago at page 71).

3. In my opinion, there is a remedy to overcome an obstacle to a fair trial in these proceedings.  A mistrial can be declared and a new trial ordered.  This then leads to the third question, being whether the requirement that the accused be required to stand trial for a third time is so unfair that it amounts to an abuse of process for which a stay should be granted.  In my opinion, the fact that the accused is required to stand trial for a third time in the circumstances which present here does not amount to an abuse of process.  There may be some circumstances where an accused being required to stand trial for a third time is an abuse of process.  However, in my view this is not one of those occasions.  The trial is likely to be heard within a relatively short period of time.  Whilst the events, the subject of the charge, date back to 10 October 1997 that fact does not suggest that the accused will be prejudiced by the holding of a further trial or that it is unfair to him.

4. I should make one final comment.  Mr Lyons urged me to invite Mr Muscat to call Mr Judge.  Mr Muscat indicated that even if I did this he would not accede to that invitation.  I do not propose to make such an invitation.  In my view it is not within the province of a judge to do so.  At best a judge may invite a prosecutor to reconsider his decision (Apostilides) at 575). However, I am not prepared to undertake such a task. In my opinion, I am not in a position, as the case presently stands, to do so.

5. It follows from what I have said that an application for a permanent stay is refused.