R v Keogh (No 2)

Case [2015] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v KEOGH (NO 2)

[2015] SASC 180

Judgment of The Honourable Justice Blue

11 November 2015

CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS

CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED

CRIMINAL LAW - PROCEDURE - WITNESSES - REFRESHING MEMORY

The defendant is charged with the murder of his fiancé in 1994.

Statements were taken by the police from various witnesses in 1994 and 1995 leading up to the committal in 1994 and trials in February/March and August 1995.

The defendant was convicted at the second trial, which conviction was set aside in December 2014 on a second appeal.

The defendant invited the Director to agree to a protocol for proofing witnesses for the forthcoming retrial.  The protocol included that witnesses’ recollection be exhausted before they are shown previous accounts; witnesses then only be invited to refresh their memories by reference to previous accounts from which they could refresh their memories in court; witnesses not be shown transcripts of previous evidence; and that the proofing be recorded.

Held:

1.       The prosecution owes to the court a duty of disclosure in respect of evidence of prosecution witnesses (at [54], [62]).

2.       The duty of disclosure is not absolute but depends on considerations of fairness and the particular circumstances of the case (at [56]-[61]).

3.       The duty of disclosure is not necessarily confined to matters known to the prosecution but the prosecution has a duty in certain circumstances to make reasonable inquiries in order to make disclosure (at [63]).

4.       The court has power to order disclosure by the prosecution to the defence (at [64).

5.       In the case of witness W1, a direction should be given to the Director, if necessary, that the prosecution disclose to the defence in an appropriate form the present recollection nd unrefreshed evidence of witness W1 by proofing her initially without her first reading her previous accounts disclose the previous accounts provided to her and stage at which they are provided, and disclose her refreshed evidence (at [83]-[88]).

6.       The question of disclosure in respect of other prosecution witnesses reserved (at [89]).

7.       No direction should be given that the Director not provide to witnesses at any stage witness statements in respect of which they would not be granted permission to refresh their memory out of court (at [92]).

8.       There is no basis to give a direction that the Director not give to prosecution witnesses at any stage transcripts of their previous evidence.  Observations as to the general undesirability of witnesses being given such transcripts (at [100]-[101]).

9.       No direction should be given that a verbatim record of the proofing of prosecution witnesses be made.  It is a matter for the Director to determine the form of the disclosure to be made.  Disclosure in conventional narrative form would comply with the duty of disclosure (at [106]).

Evidence Act 1929 (SA), s 45A,…

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AGLC
R v Keogh (No 2) [2015] SASC 180
Case
[2015] SASC 180
Decision Date

CaseChat Overview and Summary

The case of R v Keogh (No 2) involves the defendant seeking a stay of proceedings against his conviction for the murder of Ms Cheney. The defendant was convicted of murder in 1995, but the Full Court of the Supreme Court of South Australia set aside the conviction in 2014, directing a retrial. The defendant's application raises several preliminary issues, including the disclosure obligations of the Director of Public Prosecutions (DPP) regarding the evidence of prosecution witnesses. The key issues concern the extent to which the DPP must disclose the present recollection of prosecution witnesses unaffected by previous accounts given by them, whether the witnesses should be proofed only by reference to materials from which they could refresh their memory in court, and the form of the record of the proofing process.

The court considered the exceptional circumstances of the case, noting the significant passage of time since the events in question and the previous trials. The court held that the DPP should disclose to the defence the unrefreshed evidence of the witnesses in an appropriate form, such as statements in traditional narrative form. The court emphasised that the witnesses should be proofed from their recollection without first reading their previous accounts, and that a record should be made of each witness’s unrefreshed memory, the previous accounts given to each witness, and the extent to which their memory is refreshed. The court also noted that the DPP should provide the defence with identification of the previous accounts provided to the witnesses and the stage at which they are provided.

The court's reasoning focused on the importance of ensuring that the defendant has access to the evidence in a form that allows for a fair trial, given the exceptional circumstances of the case. The significant passage of time since the events and the previous trials meant that the witnesses' memories would likely have been affected, and it was crucial that the defence have access to the witnesses' unrefreshed evidence. The court also noted that the form of the disclosure should be such that the defence could effectively use the evidence in the trial.

The court concluded that the DPP should disclose to the defence the unrefreshed evidence of the witnesses in an appropriate form, and that the witnesses should be proofed from their recollection without first reading their previous accounts. The court further directed that submissions from the parties would be heard if necessary regarding the position in relation to the other witnesses.

Orders

Orders of the court

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Background

Background to the litigation

The defendant has brought an application seeking a stay of proceedings on various grounds. I directed that three inter-related preliminary issues raised by that application be heard and determined before the balance of the application.[2] Those issues are:1.Should the Director disclose to the defence the present recollection of the prosecution witnesses unaffected by their reading previous accounts given by them being witness statements given to the police or transcripts of their evidence at the committal and/or previous trials?2.Should the Director:(a) proof the witnesses (at the appropriate stage) by reference only to materials from which they could refresh their memory in court?(b) not show to the witnesses their evidence transcripts?3.Should the Director make a record of the proofing and in what form?[2] Some other preliminary issues are to be heard and determined before the balance of the application. Background The prosecution case is that the defendant deliberately drowned Ms Cheney in the bath by causing her head to be submerged until she drowned. The prosecution case is that Ms Cheney died some time between 8.10 pm and 9.30pm on 18 March 1994. The cause of death was drowning. The defendant called an ambulance at 9.32 pm. Ambulance officers arrived at 9.38 pm and found Ms Cheney deceased lying on her back on the bathroom floor. Police officers arrived at 9.48 pm. The police investigation commenced then and included discussions with or interviews of the defendant. The prosecution case is circumstantial. In 1994 and 1995, in the course of the police investigation and in the lead up to the committal and the trials, the police interviewed numerous witnesses and prepared witness statements which the witnesses signed. On 7 May 1994, the defendant was arrested and charged with murder. On 22 and 23 August 1994, a preliminary examination was conducted in the Magistrates Court. Some of the witnesses were examined and transcripts of their examination were prepared. The defendant was committed for trial on 23 August 1994. In February–March 1995, the defendant was tried before a Judge and jury in this Court. Various witnesses were called by the prosecution and were cross-examined by senior counsel for the defendant. The defendant gave evidence. On 11 March 1995, the jury was discharged upon being unable to reach a verdict. In August 1995, the defendant was tried again before a Judge and jury in this Court. Various witnesses were called by the prosecution and were cross-examined by senior counsel for the defendant. The defendant gave evidence. On 23 August 1995, the defendant was convicted of murder. In December 1995, the defendant’s appeal against his conviction was dismissed by the Full Court. In June 2013, the defendant filed a second appeal against his conviction. On 19 December 2014, the Full Court set aside the defendant’s conviction and directed that he be re-tried.[3] [3] R v Keogh (No 2) [2014] SASCFC 136. On 24 April 2015, the defendant’s solicitors wrote to the Director inviting him to adopt a protocol for proofing each witness. The protocol can be divided into four elements. The first part is that the witness be proofed from his or her recollection. The second part is that after the witness’s recollection has been exhausted, if she or he requests it and it meets the criteria for refreshing memory in court, she or he may be proofed by refreshing her or his memory from that previous account. The third element is that the witness not be shown any transcripts of his or her evidence given in court. The fourth element is that a record be made of each witness’s unrefreshed memory, the previous accounts given to each witness and when given, and the extent to which her or his memory is refreshed.

Evidence

Evidence Before The Court

The court has power to order disclosure of material by the Crown to the defence.[85][85] R v Charlton [1972] VR 758 and 761 per Winneke CJ, Little and Anderson JJ; R vMason [1976] 2 NZLR 122 at 123 per McCarthy P, Richmond and Cooke JJ; R v Perry (No 1) (1981) 27 SASR 166 at 171-172 per Cox J; Sobh v Victoria Police Commissioner [1994] 1 VR 41 at 47-48 per Brooking J and 71 per Ashley J; Carter v Hayes (1994) 61 SASR 451 at 456 per King CJ (with whom Bollen and Mullighan JJ agreed); R v Higgins (Unreported, Supreme Court of Victoria Court of Criminal Appeal 3 March 1994 BC94061132) at 73 per Brooking, Byrne and Eames JJ.Disclosure of unrefreshed evidence The circumstances in which the witnesses will come to give evidence at the third trial are highly exceptional. In a typical case, statements are taken from witnesses progressively. An initial statement is taken and follow up statements are taken as additional matters arise. The trial is usually within one, two or three years of the initial statement. The witnesses have special reason to keep the relevant events in mind. They expect that they will or may have to give evidence at trial. They are also being reminded by the ongoing process of statement taking by the police and proofing by the prosecution. The typical case is exemplified by the second trial of this matter in August 1995. One witness can be selected as an exemplar. I shall call this witness W1. W1 was spoken to by police on 28 March 1994. She gave a lengthy statement to the police that she signed on 19 April 1994. She gave supplementary statements that she signed on 5 December 1994 and 23 January 1995. She gave evidence at the first trial between 24 February and 2 March 1995. She gave a short supplementary statement that she signed on 19 April 1995. She gave evidence at the second trial on 11 to 14 August 1995. It may be expected that W1 kept in mind the events in question until she gave evidence and the defendant was convicted at the second trial in August 1995. Unlike the typical case, 20 years have now elapsed since the second trial. W1 and the other witnesses have not had reason to keep the events in question in mind by either continuing statement taking and proofing or the expectation that they would be giving evidence at a further trial. They will be proofed by the Director’s office 20 years after the relevant events and after they were last asked to given an account of those events. The passage of 20 years is likely to have had a substantial effect on the memories of the witnesses of the relevant events. That effect will be variable from witness to witness, topic to topic and detail to detail. When the witnesses come to give evidence at trial, they will be required[86] to give evidence in the witness box in the first instance without being permitted to refresh their memories from their previous accounts given in 1994-1995 (unrefreshed evidence). [86] It cannot be assumed at this stage that the defendant will waive this requirement.

Decision

Reasons for decision

It is a matter for the Director to determine the form of the disclosure. Disclosure is not usually given by way of audio or audiovisual recordings or transcripts of questions and answers. Provided that substantive disclosure is made of the witness’s unrefreshed and refreshed evidence and of the previous accounts provided to the witness, such as by providing statements in traditional narrative form, the Director will have complied with the duty of disclosure.Conclusion The prosecution should disclose to the defence in an appropriate form the present recollection and therefore unrefreshed evidence of W1 by proofing her initially without her first reading her previous accounts, an identification of the previous accounts provided to her and stage at which they are provided, and in an appropriate form her refreshed evidence. I will hear submissions from the parties if necessary as to the position in relation to the other witnesses.

Ratio Decidendi

Legal Principle Established

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