Spigelman CJ at 1; Greg James J at 2; Smart AJ at 68
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
97/61/0130
LOWER COURT JUDICIAL OFFICER:
Cooper, DCJ.
COUNSEL:
Crown: T. Buddin, SC/D. Howard App: S. Norrish, QC
SOLICITORS:
Crown: C.K. Smith App: Maureen Fanning & Associates
CATCHWORDS:
Criminal trial - practice and procedure - duties of prosecutor - witness - refusal to call as not a witness of truth - inadequacy of basis for refusal in absence of proper enquiry - need to confer or otherwise establish basis - evidence received on appeal of witness' evidence of materiality to trial issues - failure to call witness and alternatively to make adequate enquiry causing a miscarriage of justice - principles in Apostilides and Whitehorn considered - role of Crown Prosecutor to seek to secure a fair trial - asserted inadequacies in directions on complaint - asserted inconsistencies in verdicts.
1 SPIGELMAN, CJ: I agree with Greg James J and Smart AJ. 2 GREG JAMES, J:
Nature of the appeal
3 This appeal was heard on 6 August 1999 and at the conclusion of argument we ordered that the extension of time…
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.
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AGLC
R v Kneebone [1999] NSWCCA 279
Case
[1999] NSWCCA 279
Decision Date
CaseChat Overview and Summary
The appellant was convicted of multiple counts of indecent assault against children and was sentenced to imprisonment. The appeal against the conviction was based on the Crown Prosecutor's failure to call a key witness. The witness had provided evidence to the prosecutor indicating the importance of the witness' testimony to the trial issues. Despite this, the prosecutor did not call the witness, nor did they make any proper inquiry into the reasons for the witness' refusal to testify. The appeal was heard by the High Court of Australia, which considered the principles set out in the cases of Apostilides and Whitehorn.
The primary legal issue was whether the prosecutor's failure to call the witness, or to make an adequate inquiry into the reasons for the witness' refusal, resulted in a miscarriage of justice. The court examined the duty of the prosecutor to seek to secure a fair trial and the adequacy of the basis for the prosecutor's decision not to call the witness. The court also considered the impact of the Crown Prosecutor's asserted inadequacies in the directions on the complaint and the asserted inconsistencies in the verdicts.
The High Court found that the prosecutor had not adequately established the basis for their decision not to call the witness, or to make a proper inquiry into the reasons for the refusal. The court held that this failure, in the absence of proper inquiry, was a miscarriage of justice. The court further held that the principles in Apostilides and Whitehorn were applicable, and that the prosecutor's duty to seek to secure a fair trial was not properly discharged. The appeal was allowed, the convictions were quashed, and a retrial was ordered.
In light of the findings, the High Court made orders quashing the convictions and ordering a retrial. The court emphasised the importance of the prosecutor's duty to seek to secure a fair trial and the need for proper inquiry when making decisions about calling witnesses. The court also highlighted the importance of ensuring that the evidence received on appeal is considered in the context of the trial issues. The decision in this case serves as a reminder to prosecutors of their obligations in ensuring a fair trial and the consequences of failing to properly discharge those obligations.