R v M, RS - [2016] SADC 166

District Court of South Australia
(Criminal)
R v M, RS
[2016] SADC 166
Reasons for Decision of His Honour Judge Slattery (ex tempore)
13 December 2016
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
The accused is charged with persistent exploitation of a child in the period between 25 September 1981 and 31 December 1991. The accused elected to be tried by judge alone. The prosecution obtained a witness statement from the complainant’s mother, the wife of the accused but has decided not to call the mother as a witness in the prosecution case.
The witness statement of the mother records that, contrary to the complainant’s version of facts, she has no recollection that any complaints were made to her of the conduct of the accused, the subject of the particulars of the charge during the relevant period.
The decision of the prosecution not to call the mother in evidence as part of the prosecution case was made after conferring with the mother and ascertaining her attitude to the offences charged against her husband, her forthright views of her daughter’s behaviour and the inconsistencies between her witness statement and the witness statement of another family member, her second daughter.
On the application by the accused for orders that the court invite prosecuting counsel to call the mother as a witness as part of the prosecution case in order to ensure that the accused receives a fair trial and is not the subject of a miscarriage of justice.
Held:
Application refused.
Criminal Law Consolidation Act, 1935 s 50(1); Juries Act s 7; District Court Criminal Rules rule 49(d), (j) and (k), referred to.
The Queen v Apostilides (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450; Whitehorn v The Queen (1983) 152 CLR 657; Jones v Dunkel (1959) 101 CLR 298; The Queen v Russell-Jones (1995) All ER 239; R v O’Brien (1996) 66 SASR 396; Diehm v Director of Public Prosecutions (Nauru) (High Court) [2013] HCA 42; R v Terrence Chimirri [2010] VSCA 57; R v Nguyen [2009] SASC 91; The Queen v Douglas Victor Jensen [2009] VSCA 266; R v Soma (2003) 212 CLR 299, discussed.
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Stanoevski v The Queen (2001) 202 CLR 115, considered.

R v M, RS
[2016] SADC 166

The accused RSM is charged on Information for arraignment 21 July 2014 with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RSM, between the 25^th day of September 1981 and the 31^st day of December 1991 at Modbury Heights and other places, over a period of not less than three days, committed more than one act of sexual exploitation of JLM, a person under the age of 18 years, whilst he was in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)   causing JLM to masturbate his penis on one occasion;
b)   inserting his finger into JLM’s vagina on one occasion;
c)   touching JLM on her vagina on the outside of her clothing on more than one occasion; and
d)   touching JLM on her breasts on the outside of her clothing on more than one occasion.
Pursuant to s 7 Juries Act, the accused has elected to be tried by judge alone sitting without a jury.
On 12 December 2016, the accused brought an application for directions pursuant to rule 49(d), (j) and (k) of the District Court Criminal Rules.[1]
[1] 49—Written application
(1)An application—
…
(d)to quash or stay a proceeding on the ground of an abuse of process or otherwise;
…
(j)required by these Rules to be made by written application;
(k)that cannot reasonably be made without notice to the other party or parties;
The application seeks orders or directions:-
1That the learned trial judge invite prosecuting counsel to call as part of the prosecution case the witness PMM in order to ensure that the applicant receives a fair trial and is not the subject of a miscarriage of justice;
2Such further or consequential orders, including a stay of proceedings, as may be required to ensure that the trial does not constitute a miscarriage of justice.
Six separate grounds are then set out in the application. They read as follows:
Grounds
The grounds upon which the application is made are as follows:
1.   The witness, PMM, is a material witness who is repeatedly incorporated into the narrative on the prosecution case.
2.   In the declaration of the complainant, JLM, sworn on 21 July 2013 words and actions are attributed to the witness on numerous occasions including the following:
a.   Remaining in bed with the applicant (4.5).
b.   Initial complaint to the witness (6.5).
c.   The applicant was sorry and he acknowledges wrong doing (7.5).
d.   Further complaint to the witness about touching (8.3).
e.   Witness asked the applicant to put the complainant to bed (8.5).
f.    Applicant’s sexualised behaviour in caravan in presence of witness (20.2).
g.   Warning to stay away from the applicant and R (23.1).
h.   The witness writing statutory declaration (24.4).
3.   The witness PMM on 11 May 2015 at Adelaide provided the investigating officer with a seven (7) page sworn declaration with respect to the evidence which she could give in relation to the matter, and on 13 May 2015 the witness provided a further three (3) page sworn declaration to the investigating officer.
4.   The prosecution have a duty to call all material witnesses, even witnesses who may give evidence inconsistent with the prosecution case. Issues and questions of credit and reliability are matters properly for the determination of the trier of fact.
5.   No materials have been disclosed nor statements provided, that would support a contention that the witness is unreliable, untruthful, or incapable of belief.
6.   For the prosecutor to decline to call the witness will deny the accused a fair trial and may lead to a miscarriage of justice. If the prosecution declines to call the witness, then the defence would either have to call the witness, and expose her to cross examination no doubt directed towards her credit and motives, about which the defence have been provided with no declaration or materials. Alternatively, if the prosecution decline to call the witness, and the defence also decline to call the witness, then the trier of fact will be denied the right to hear material evidence which contradicts the prosecution case in a relevant and material sense.
The witness PMM is the mother of the complainant. She is married to the accused, who is the stepfather of the complainant. The complainant took the surname of the accused from the time of her mother’s marriage to the accused in 1981; at the time the complainant was about 8 years old.
The complainant has provided a statement to the police setting out the factual basis of the allegations against the accused. This has been provided to the accused in the usual way. The police have also taken a statement from the mother of the complainant, the wife of the accused which contradicts some of the allegations of fact made by the complainant and on other occasions the mother has no memory of the alleged facts or events.
In her statement given to the police, the mother was asked questions about some of the factual matters raised by the complainant in her police statement of 21 July 2013 which involved the mother. In that statement of 4 May 2015 the mother contradicted or had no memory of some of these allegations of the complainant.
The prosecution do not intend to call the mother in evidence as part of its case. The attitude of the prosecution is that it is entirely within its discretion about who it calls in evidence as part of the prosecution case. The prosecution informs me that apart from any evidence given by the mother about complaints made to her by the complainant and its sequelae, where her evidence is at odds with the evidence of the complainant there is no collateral challenge by the prosecution to the credit of the mother. The challenge would be to the version of events given by her only in that limited sense.
The accused submits that the complainant’s version of events set out in her witness statement incorporates an involvement of the mother in a number of ways. Those include such things as evidence of complaints on two occasions allegedly made by the complainant to her mother. Thus the involvement of the mother is incorporated in the police statement of the complainant. The mother denies that involvement or has not recollection of it.
The accused also submits that if the version of events given by the complainant is not true, it is at least a reasonable possibility that the narrative of the complainant’s statement which incorporates the involvement of the mother is also not true. I consider that there is an obvious logical flaw in this argument because it relies upon a finding of the version of the complainant not being true to then reason by extension that any version of her evidence involving the mother (on those topics) must also be untrue.
The prosecution must prove its case against the accused beyond reasonable doubt and in light of the known facts of this matter, that case turns almost entirely upon the evidence of the complainant. That case may or may not be assisted by evidence of complaints made to the mother. That will depend upon a host of variables that are too difficult presently to assess. The presumption may be made that the evidence of the mother will be consistent with the statement that she has given to police. This is as much an advantage for the accused as it is potentially a disadvantage for the complainant’s version of events. But in the end the essential question for me as the trier of fact is whether the prosecution has proved its case against the accused beyond reasonable doubt. That assessment may or may not be informed by my assessment of the evidence about the alleged complaints. The position can really be put no higher.
The accused then argued that a conundrum arises because of the different versions of facts that are now apparent on the police statements. He submitted that the only way for it to be resolved is for the prosecution to call the mother in evidence. Again whatever superficial attraction this argument may have, it cannot withstand critical scrutiny. There is no conundrum that arises because the argument fails to take account of the burden upon the prosecution to prove its case beyond reasonable doubt. There may be many reasons that the prosecution may fail to discharge that burden and one is that the whole of the evidence led by the prosecution is insufficient to discharge that burden. Alternatively a reasonable possibility inconsistent with guilt may arise on the evidence. That is a matter for the evidence.
The accused submits that the only way this could occur is for the mother to be called in evidence by the prosecution. He submits that there is nothing to suggest that the mother is in any way “delusional” or has exhibited any intention to mislead the court. I understand that this submission is put as an anticipatory counterweight to a submission that may be put about the reliability of the evidence of the mother. I was informed by the prosecution that the mother has openly suggested that the complainant has made up her story or that her story is a product of her imagination because she may have dreamed those events. These are very strident criticisms for a mother to make of her daughter. The prosecution case is that having spoken to both the complainant and the mother, the prosecution had decided not to call the mother in evidence. And the prosecution was satisfied that the complainant was a truthful, reliable and credible witness.
In light of that assessment the prosecution would not in the exercise of its prosecutorial discretion call the mother and it makes no collateral attack on the credibility of the mother. The prosecution contends that it was sufficiently satisfied of the credit worthiness, reliability and truthfulness of the complainant that such a decision is open to it.
The accused submits that, relying on settled authority, the situation here is that a miscarriage of justice would occur in the event that the prosecution did not call the mother to give evidence. He submitted that it matters not whether the prosecution may attempt to elicit evidence from the mother or only call her and make her available to the accused for cross examination.
The general thrust of the case for the accused is that in a statement given to police by PMM, when she was asked questions about some of the factual matters raised by the complainant, dated 21 July 2013, which involved the mother, she contradicted the evidence given by the complainant in a number of material respects. That is apparent from a witness statement given by the mother to police on 11 May 2015, which was enlarged to an extent on 13 May 2015.
In submissions, the accused relied upon the decision of the Court of Criminal Appeal of New South Wales in R v Kneebone.[2] It is necessary to closely examine the factual circumstances of this case. I will do so below. Before doing so, it is appropriate first to make reference to those passages of the judgment of Greg James J, where his Honour canvassed the decisions of the High Court in this area. His Honour said at [39]-[42] inclusive as follows:-
[2] (1999) 47 NSWLR 450.
The Australian position
[39] The High Court of Australia in The Queen v Apostilides (1984) 154 CLR 563 at 575 laid down a number of general propositions as being applicable to the conduct of criminal trials in Australia:—
“1. The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may then make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, would be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”
[40] In discussing the circumstances in which a miscarriage might be occasioned by the failure to call a witness, the court said:—
“In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. … So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the essential question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory. (at 577-578).”
[41] In Whitehorn v The Queen(1983) 152 CLR 657, Deane, J. (at 663-664) characterised the obligation of a prosecutor for the Crown in these terms:—
“In performing the function of presenting the case against an accused, a Crown Prosecutor must act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.”
[42] Dawson, J., for his part, said at 674-675:—
“[a]ll 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. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them, then the selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court. … No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trail.”
In the exchanges between bench and bar during the course of argument, it became clear that the focus of the application of the accused revolved around general proposition 6, that the decision of the prosecutor not to call the mother will constitute a ground for setting aside a conviction when, if viewed against the conduct of the trial taken as whole, it is seen to give rise to a miscarriage of justice.
It was accepted by the court that a miscarriage of justice might be occasioned by the failure to call a witness. Generally, such a miscarriage will be traced to the wrong exercise of judgment by a prosecutor as a result of which a witness was not called. An absence of an error of judgment by a prosecutor will mean that there is less likelihood of a miscarriage of justice as a result. Also, the absence of testimony from a witness might lead to a miscarriage of justice absent any error. That will occur where a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown.
The question then becomes whether in all of the circumstances such a verdict is unsafe or unsatisfactory. The guidance given by the High Court about that situation is that any witness whose evidence is necessary to unfold the narrative and give a complete account of events should be called. In general such persons will include eye witnesses of events and in that category will include witnesses who will give accounts which are inconsistent with the Crown case. Generally however, the prosecutor is not bound to call any witness including an eye witness whose evidence is assessed to be unreliable, untrustworthy or otherwise incapable of belief.

This is not a question for the trial judge but a question which may arise on appeal as to whether or not the verdict is unsafe or unsatisfactory as a result of the decision made by a prosecutor. The fundamental rule is that the prosecutor alone bears the responsibility for deciding that a person should be called as a witness. The terms of this application invite me to question the prosecutor about the decision of the prosecutor to decline to call the mother of the complainant. I may but I am not obliged to do that and I am not the arbiter of the sufficiency of the reasons. The decision is a matter for the prosecution and not for me.
In that background, it is necessary also to traverse the facts of the Kneebone decision. This was in appeal to the Court of Criminal Appeal of New South Wales. The only ground of appeal relevant to this discussion was one complaining of the failure of the Crown to make adequate and proper enquiries as to the availability of the wife of the appellant and the complainant’s mother and the detail of her recollection of relevant events that were relevant to the allegations by the complainant. It was alleged that this failure caused a miscarriage of justice. Alternatively it was alleged that a miscarriage of justice occurred because of the failure of the Crown to call the wife and mother to give evidence at the trial of the appellant. The complainant lived with her mother and the appellant in a home where she alleged that the appellant had committed the acts the subject of the count of sexual intercourse in circumstances of aggravation and the count of indecent assault in circumstances of aggravation.
The complainant asserted that during the act of intercourse on the first count, her mother opened the door to the room, stood at the doorway, looked at what was occurring and said “that’s enough”. The complainant said that she looked at her mother who walked away whilst leaving the door to the room open and intercourse ceased soon afterwards. The complainant said that she went into the bathroom of the home, attempted to wash herself, was pushed by the appellant and as a result fell into the bathtub hitting her head on the back of the bath. She commenced to pack her bags and made to leave the home. She was spoken to by the mother who asked what had happened and she replied “like you don’t know”. The complainant ran out of the home and down to the outside of a hotel a little further down the street. She there spoke to passers-by and obtained sufficient money to get a taxi and went to the home of a Mr and Mrs Saillard. There it was identified that the complainant was suffering injuries and there were blood stains consistent with the assault in the bathroom and also consistent with some of the physical injuries she claimed to have suffered in the bedroom. Photographs were taken.
Soon after that time, the complainant spoke to the police but said nothing about the enforced sexual intercourse. She was examined by a doctor that night but again said nothing about any form of sexual intercourse. When asked why she had not made a complaint about sexual intercourse, her response was that she thought the accused would hunt her down and kill her. He had made some threats to her before she left the house but neither of them appeared to be connected to the possible disclosure of the sexual nature of the assault. She made a complaint about a year later to the daughter of Mrs Saillard and that was repeated a little later when there was a discussion about whether a complaint should be made to DCS.
The circumstances surrounding the conviction of the accused is slightly peculiar. The allegation of the assault led to the charges against the accused. The charge was assault occasioning actual bodily harm. When he was due to appear to answer those charges in the Bathurst Local Court, he had decamped to South Australia and did not return to New South Wales until May 1997. He was convicted in his absence. When he returned in 1997, the allegations of the sexual offence had been made. Earlier he had been interviewed, he denied the allegations that he had struck the complainant but admitted to an altercation in the bathroom in which the complainant had been knocked into the bath. That interview was tendered at the trial, in his absence.
The wife and mother was interviewed by the police. She denied any assault had occurred when spoken to by police and later, the appellant gave sworn evidence about the argument and altercation in the bathroom but denied striking or choking the complainant. He also denied sexually attacking the complainant.
At [30], Greg James J held as follows:-
[30] Notwithstanding that on the evidence of the complainant her mother was a material eye witness whose evidence might crucially affect the jury’s decision on the disputed event the Crown did not call her but sought a Jones v Dunkel (1959) 101 CLR 298 direction in its favour because the defence had not called her.
The wife and mother was only called by the defence on the question of sentence and she was not cross examined. At that time, the trial judge alerted her to what the complainant had said about her presence during the sexual assault. The wife and mother denied that version of events.
In later affidavit evidence admitted before the Court of Criminal Appeal, the wife and mother denied having seen the sexual assault or saying words to the effect as alleged by her daughter. She had been told by the prosecution that she would be called to give evidence and made herself available to do so. As things turned out it was not until the end of the first day of trial that the prosecutor enquired of the defence counsel whether the defence intended to call the wife and mother in evidence. The response was that the witness statement of the wife and mother was part of the brief upon which the accused had been committed for trial and it was not until the following morning that the prosecutor advised defence counsel that he would not call the wife and mother as a witness. He had formed an opinion that her evidence was unreliable.
Defence counsel did not call the wife and mother in evidence. She had not been proofed and defence counsel was not aware of what responses she might make to the factual assertions of the complainant. Counsel for the accused said he was of the view that the complainant may not have been truthful to the police when she gave her statement about the circumstances of the alleged physical assault.
In that background, Greg James J then turned to assess the relevant authorities. Before discussing these aspects of his Honour’s judgment it is necessary to identify that there is a factual distinction to be made between the case at bar and Kneebone. In Kneebone, the complainant alleged that her mother was a material eye witness. Her evidence may crucially have affected the jury’s decision on the disputed event. The prosecutor did not call the mother but, upon the failure of the defence to call the wife and mother, sought a Jones v Dunkel direction. In the case at bar, the mother was not an eye witness. Her evidence could not be assessed as being that which might crucially affect a jury’s decision on any the disputed event because she was not present (and so was not a direct witness). In the case at bar, after being interviewed by the prosecution, a decision was made not to call the mother.
At [43] Greg James J considered the Australian authorities and the guidelines for the New South Wales DPP.
His Honour also made reference to the Court of Criminal Appeal decision of R v Russell-Jones at [46] as follows:-
[46] In the United Kingdom, the position is covered by the propositions laid down by the Court of Appeal in The Queen v Russell-Jones (1995) All ER 239 where the court said:—
“ …
4. The next principle is that the prosecution ought normally to call or offer to call all the witnesses who gave direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness' evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded … If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say ‘incredible’, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called …
5. It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal.
6. The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he give as account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others.
7. 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.”
Greg James J then addressed the question of ascertaining unreliability and confirmed that merely because a witness may give evidence inconsistent with or contradictory of other evidence does not necessarily or at all lead to the conclusion that the evidence of the witness is untrue. His Honour held that it is necessary that a prosecutor whose decision is under examination must be able to point to identifiable factors justifying a decision not to call a material witness.
The material witness in Kneebone was a material eye witness. She was not called to give evidence by the prosecution because of her perceived lack of reliability. His Honour confirmed that it is insufficient for a prosecutor, in that instance, to merely rely upon a case theory in making a decision not to call a witness. At [51] and following, Greg James J identified a number of steps that a prosecutor might take. One such step would be a conference with the witness. In the case at bar, I was informed that the mother had been interviewed by the prosecutor and following that interview, the prosecutor confirmed his decision not to call the mother. Greg James J made reference to the decision of the Court of Criminal Appeal of South Australia in R v O’Brien[3] and in particular the decision of Doyle CJ at 397-398.
[3] (1996) 66 SASR 396.
In that case, observations had been made by a witness G of the accused and a woman whom the accused had allegedly raped at a New Year’s Eve outdoors party. The complainant had asked to use the toilet and was allowed inside the home where the rape allegedly occurred. The witness G had made observations of what was occurring and had been proofed by the prosecutor. After proofing, the prosecutor declined to call G because he showed clear allegiance to the appellant accused and was unreliable on the central issue of his evidence. He was not listed on the Information as a witness but his statement was made available to the defence who called him in evidence. Once G gave evidence, he proved more favourable to the prosecution than the prosecutor had anticipated and so a positive attack could be made upon his evidence during cross examination by the prosecutor.
In that case, it is plain that G was a material witness because he was observing events leading to the complainant being allowed into the house by the accused. The Court of Criminal Appeal held that the prosecutor’s discretion not to call G as a material witness had not miscarried because the prosecutor had formed the view that G was unreliable and untrustworthy. That was not an error of judgment because there was abundant material to support the prosecutor’s decision not to call G as a witness. Therefore, the case in part turned upon the decision made by the prosecutor based upon the information before the prosecutor at the time. Doyle CJ summarised the relevant principles at page 398‑399 as follows:-
While the issue for this Court is now whether what subsequently occurred gave rise to a miscarriage of justice, not whether the decision was correctly made at the time, in my opinion it is appropriate to make two observations. The first is that the court is not in a position to make any comment upon the soundness of the conclusion which the prosecutor formed having spoken to and having proofed the witness G. The second is that, in my opinion, the matters identified by the prosecutor and explained in submissions to the trial judge, which I have summarised above, are capable of supporting the decision reached by the prosecutor. In my opinion, on the basis of the explanation given by the prosecutor to the trial judge, it cannot be said that there was an error of judgment. True it is that when G ultimately gave evidence for the defence, his evidence was more moderate than the prosecutor's explanation suggested, and the record of his testimony does not provide a clear basis for saying that he was a witness “in the camp of the defence”, but in my opinion it would be wrong to decide matters in the light of the evidence as it ultimately unfolded. For those reasons, I content myself with the observation already made, namely, that on the basis of the matters stated by the prosecutor it cannot be said that there was an error of judgment.
His Honour then turned his attention (at p399) as to whether a miscarriage of justice had been demonstrated. His Honour observed that the witness was called by the defence and there was no reason to think that the defence was unable to elicit from G any material that was required for the purposes of the defence case. There was also no reason to think that G was less likely to be believed by the jury because his evidence was led by the defence.
G was cross examined on the difference between his witness statement where he described the complainant as being quite drunk, and his evidence in chief when he said that she had had a few drinks. As well, G was asked by defence counsel questions about whether at an earlier stage he had made a statement to the police and had spoken to the prosecutor before trial. The court accepted that this inevitably led to cross examination by the prosecution of G on his previous statement given to the police. Even though the case took an unexpected turn, that was not productive of a miscarriage of justice. This is because the defence was always able to elicit all the material which it required and there is no reason why the fact that the defence called the witness should have lessened the chances of him being accepted by the jury.
At p 400, Doyle CJ then canvassed submissions made by the prosecutor that as between the accused and G, they had “cooked up” a version of fact between them but, even taking those matters into account, the question was not whether the prosecution was right or wrong in making the decision not to call G, but whether a miscarriage of justice occurred because G had not been called in the prosecution case. His Honour followed the decision of Deane J in Whitehorn (at 664) that where a material witness is not called at all, then a miscarriage is likely to fall into the category of unsafe or unreasonable. This is based upon the right of the accused to a fair trial. His Honour held at p 400 as follows:-
If a witness is called by the defence because the prosecutor will not call that witness, the question of miscarriage is better described as a question of whether the conduct of the defence was unduly prejudiced by the need for the defence to call that witness. Apostilides is an example of this approach.
The question was whether the failure to call G did so effect or permeate the trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial (Whitehorn at 664 per Deane J). His Honour identified that the consequence of the decision of the prosecutor not to call G was that he would be cross examined by the prosecutor rather than by the defence.
The court did not identify that the prosecutor had made an error of judgment because the prosecutor had formed the view of the lack of credibility of G. Any adverse consequence of the prosecutor’s decision was not a basis for making a finding that a miscarriage of justice had been identified. Millhouse J agreed with the decision of Doyle CJ. In a separate judgment, Williams J came to the same conclusion.
Returning to the decision of Greg James J in Kneebone, his Honour identified at [58] that it was because of the way in which the complainant’s evidence was given, then the evidence of the mother and whether or not she witnessed the alleged sexual intercourse (in the manner described by the complainant) was essential to the unfolding of the narrative and was therefore crucial on issues of credibility. Thus, the considerations first are the way in which the complainant’s evidence was given. The second is whether the evidence of the mother is essential to the unfolding of the narrative and crucial on credibility and the third, whether not calling the witness without having a principal basis for doing so “…accorded ill with the traditional notion of the functions of a prosecutor for the Crown…”[4]
[4] Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 294.3.
I am of the view that an understanding of the decision of the Court of Appeal of New South Wales is not complete unless there is an analysis of the decision of Smart AJ particularly at [91] and following. There, Smart AJ emphasised that the appellant was in considerable difficulty calling his de facto wife. He said:-
Even allowing for the complainant being difficult to handle, the mother had let her daughter leave the home in the condition she was subsequently found by Mrs Saillard. If the mother said that the daughter was not in that condition when she left home, that would not be easy to accept. There is the further question as to how the complainant got into the condition. The mother’s credit would not be assisted by her subsequent conduct including leaving for South Australia with her de facto husband without her daughter and community services having to intervene. In effect, the mother surrendered her daughter in the care of the Saillard family. Put briefly, the probable serious inroads into the mother’s credit, standing and care of her daughter in cross examination could have done irreparable harm to the appellant’s case. In practical terms, the appellant could not run the risk of calling her even though she would have supported his version. There was some real risk that she would have been seen as supporting him and abandoning her daughter. Yet, she was the only eye witness apart from her daughter and her de facto husband.
Then at [103], after considering the facts of the matter, the decisions of the High Court in Apostilides and Whitehorn, Smart AJ held as follows:-
[103] I have considerable doubt whether the mother is necessary to unfold the narrative and give a complete account of the events upon which the prosecution rely. On the complainant's evidence, the mother was an observer for a short period and uttered the words: “that's enough”. The alleged rape commenced before she came to the door of the bedroom and continued after she left. It was the complainant who attributed the role mentioned to the mother. The mother denies acting as an observer or being aware of the activities of the appellant alleged by the complainant and for that reason her evidence, if true (or if there is a possibility that it is true), is important.

On that basis, at [105], Smart AJ found that it would be hard to avoid the conclusion that there would probably be a miscarriage of justice if the Crown did not call the mother because in practical terms, the appellant accused could not call her. His Honour put the matter broadly at [105] as follows:-
[105] The offence charged is particularly serious and the appellant received a long term of penal servitude (nine years with a minimum term of six years). Apart from the appellant and the complainant, she was the only other person in the house at the critical time. It was the complainant who said that the mother observed the rape and made the comment mentioned. Thus, the complainant rendered the mother's evidence in denial of importance to the appellant.
(My underlining)
I consider that the judgment of Smart AJ sets out the practical circumstances under consideration in Kneebone. They are not the same circumstances factually as in the case at bar, nor are they similar to the factual similar circumstances in O’Brien. However, as Doyle CJ identified in O’Brien, the question always is whether a miscarriage of justice has been demonstrated. That question ultimately is not a matter for me.
I am satisfied from my reading of the decision in Kneebone that it was open to the prosecution to attack the mother and the de facto wife on many issues and on many fronts. On that topic, in this application, the accused submits that the mother is plausible, can give direct evidence at least about some matters, is crucial to the reliability of the complainant and therefore is crucial to her credit. Whether or not that is so is very difficult for me to assess at the moment. It is to be recalled that the mother is not a witness who could give direct evidence of the primary facts of the case. She was not a material eye witness to the events charged and she was a person, allegedly, to whom the complainant had made complaints about the conduct of the accused. I am told from the bar table that the witness statement of the mother denies that those complaints were made to her. I understand that there is a general denial of any misconduct on the part of the accused. On the current state of the evidence it is too difficult to tell whether there is some form of clear allegiance between the mother and the accused. I put that to one side.
There is a factual dissimilarity in this case compared to the position in O’Brien and Kneebone. That is because the prosecutor has admitted in submissions that there would be no collateral challenge to the credit of the mother. The prosecutor says that having interviewed both the complainant and the mother, a decision has been made not to call the mother. Therefore, the attack upon the evidence of the mother which was such a significant feature in O’Brien and potentially was such a significant feature in Kneebone is not present in this case. Also, these facts bring into sharp relief the decisions made by Doyle CJ at p 400 in O’Brien where the refusal of the prosecutor to call G did not offend the requirement of fairness at trial or that it could be said that the prosecutor was not discharging the prosecutor’s duty in relation to the calling of that witness. Doyle CJ also emphasised in O’Brien, the mother was a witness who could have been called in evidence by the defence and so there would be no lack of evidence upon which a jury could base its verdict. In this case of course, I am hearing this matter as a trial by judge alone. Therefore, any unfairness would be greatly diminished. That said, I am unsure of the provenance of this consideration in light of discussion on this topic in other cases. I will leave it to one side.
As a secondary matter, the defence also submitted that the prosecution could call the mother to give evidence, lead no evidence from her and then leave her to be cross examined. However, in my view, some good reason would have to be shown why that should be the case. The answer from the accused’s side was that if the mother was called by the accused, she would be attacked about her credit by the prosecution in cross examination. No reason was given and no basis was suggested for making that submission. As I have said earlier, the factual circumstance in the case at bar are different from Kneebone and O’Brien.
The prosecution submitted that having assessed the complainant, no reason had been ascertained to assess her as being anything other than a witness of complete truth. The prosecutor informed me that, having conferred with the mother, it has been ascertained that she is adamant that her husband is not guilty of the offence charged. It is not clear how or on what basis the mother has formed that view. Moreover, the mother has told the prosecutor that her daughter, the complainant, has made her story up or she has imagined it all. I consider there to be a clear conflict of versions arising out of that description. I also consider, as in O’Brien, that there is a very good reason on that basis why the mother would not be called to give evidence and, she being available to be called by the defence, it becomes more difficult to conclude that the accused has been denied a fundamental right to a fair trial as a result. I am also informed (without challenge) that there is a clash of versions between what the mother says about children being in her bed with the accused and the version to be given by the daughter of the accused and the mother. I am told that in respect of some matters which the mother said did not occur, the complainant’s younger sister will give evidence that that was the case. Thus there is a real challenge to the credibility of the mother’s evidence at a number of different and important levels. I consider that these are significant matters.
I have already suggested that the prosecution has reaffirmed on a number of occasions that there is no basis to make any collateral attack on the credit of the mother and that, contrary to the submissions of the accused, and different from the position in both Kneebone and O’Brien, much of the evidence of the mother will give is not direct evidence. It was suggested by the accused at one stage in argument, that complaint evidence may be seen to be direct evidence. Although situations will vary, it would rarely be the case that complaint evidence might be seen to be direct evidence. The ability to lead complaint evidence is a significant exception to the general rules of evidence and that exception is now embodied in s 34M of the Evidence Act. Also, another answer to that contention of the accused is that the evidence of complaint may be led even if the person to whom the complaint made does not recall such a complaint or denies that it was made. In the end, it is for me, as the judge and trier of fact in this matter, to make a decision on those matters.
In making my decision in this matter, I have also taken guidance from other decisions as well as the High Court decision in Apostilides which I have set out earlier in these reasons. I have set out the passages of Whitehorn and I also particularly refer to the decision in Diehm v Director of Public Prosecutions (Nauru) (High Court);[5] R v Terrence Chimirri;[6] R v Nguyen;[7] and The Queen v Douglas Victor Jensen.[8]
[5] [2013] HCA 42.
[6] [2010] VSCA 57.
[7] [2009] SASC 91.
[8] [2009] VSCA 266.
Dhiem was a trial by judge alone[9] and by judgment of 29 November 2011 the two accused were found guilty as charged. The accused were husband and wife. They were charged with rape of a woman regarded by custom as the wife’s niece. In the appeal, the appellants complained of the failure of the prosecutor to call certain police witnesses and make them available for cross examination. The High Court dismissed the appeal.
[9] Eames CJ in the Supreme Court of Nauru.
In the lead up to the events the subject of the charges, the complainant had been taken to the home of the appellants. The male appellant had asked the complainant whether she wanted to go to Australia with him and his wife and they would pay her airfare. This was after a suggestion had been made by the female appellant that she should have sex with the male appellant and that he had had sex with a number of women. These events all occurred in the background of a long session of drinking and other events where the complainant was living temporarily in the home of the appellants.
The complaint sought refuge in a bedroom and telephoned one of her friends informing her that she was being forced at knife point to have sex with the male appellant. The female appellant was holding the knife and she forced open the door to the bedroom and held the knife to the complainant’s face. The complainant was then led into the living room where sexual intercourse occurred with the male complainant on a mattress in that room. Following that event, the complainant went to the toilet and telephoned her mother and then switched her phone off. She stayed in the toilet for 20-30 minutes until she heard people talking outside. She came outside to where the conversation was occurring and saw two police officers who had responded to a call by her mother. Those police officers were standing at the front door of the appellants’ house; she saw the police officers and began crying and was taken outside. She then told the police officers that the appellants had done something wrong to her. She was placed in a police car and she said that the first appellant had tried to have sex with her while the second appellant had a knife in her hand.
Two police officers attended the scene. Senior Constable Decima[10] and Constable Dillon Harris. They arrived at about midnight following receipt of the report. Senior Constable Decima asked the female appellant if there was anyone in the house. The female appellant said only she and her husband were there. Both appellants were asked by Senior Constable Decima whether the complainant was present in the house and they both said no, they said that the complainant had left the house that afternoon. It was then that the complainant appeared behind the two appellants and was identified by the police.
[10] For ease of reference I only refer to the Christian name of the Senior Constable.
Senior Constable Decima gave evidence that the complainant said she was forced to have sexual intercourse with the male appellant and she was forced by the female appellant under threat of a knife. Senior Constable Decima said she heard what was said by the complainant whilst in the police car. Constable Harris was standing at the front door.
There was then a question of whether either constable enquired of the appellant whether there was a Nauruan woman locked up in the house. Both of them were alleged to have answered no to that question. Senior Constable Decima denied that this question had been asked. As matters turned out, Constable Dillon was not available to give evidence. He was drunk and was otherwise indisposed. A decision was then made not to call Constable Harris but the trial judge made reference to an unsigned copy of the statement of Constable Harris who said that the male appellant said there was no lady locked up inside the dwelling. He then said that after questions from Senior Constable Decima, the complainant appeared from somewhere within the house, they having earlier denied that she was present. The appellants then identified that person as the complainant. Therefore, there was an inconsistency between a statement of Constable Harris and the statement of Senior Constable Decima. Senior Constable Decima denied any conversation between she, Constable Harris and the appellants in which one of them asked a question whether there was Nauruan woman locked up in the house.
The appellant contended that Senior Constable Decima’s evidence of what had been said could not be accepted without Constable Harris’ confirmation of it. Also, Constable Harris could have given evidence going to the complainant’s state of intoxication at the time of the police visit. The argument was whether the absence of Constable Harris’ evidence meant that the trial judge could not be satisfied beyond reasonable doubt on that as vital to a verdict of guilty against the appellants. The absence of Constable Harris denied the defence the chance to explore that concept in evidence between the two police officers. This was identified by the trial judge at first instance who did not receive Constable Harris’ statement in evidence nor did he treat it as evidence.
The trial judge had observed that the prosecution case would have been strengthened if Constable Harris had given evidence to corroborate Senior Constable Decima’s evidence but full allowance had been made for that absence when weighing the evidence of Senior Constable Decima. The trial judge observed that the defence could have made much of the discrepancies between the evidence of Constable Harris and Senior Constable Decima. However, the trial judge found that the absence of Constable Harris’ evidence did not cause him to have any doubt that the female appellant had expressly said she left earlier in the afternoon when specifically asked about the complainant. His Honour found that this statement was told in consciousness of guilt. His Honour considered the responses of both of the appellants to be lies.
Before the High Court, the appellants contended that there was a loss of chance of acquittal arising from the failure to call Constable Harris because of the inability to challenge the evidence about the responses given to Senior Constable Decima as being lies indicating a consciousness of guilt. They also complained that they had lost the chance to explore the discrepancy between Harris’ evidence and that of Senior Constable Decima about whether the complainant had given a statement to Senior Constable Decima in the police car which was a complaint about the conduct of the appellant. That discrepancy was said “…to go to the issue of whether there had been a recent complaint and whether the complainant was distressed in a way that corroborated her evidence…”[11] The High Court summarised the position at [63] as follows:-
[63] It is well established that the prosecutor in a criminal trial conducted under the adversarial system of criminal justice must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one". The objective of a fair trial requires the prosecutor to call all available witnesses unless there is some good reason not to do so. Mere apprehension that testimony of a particular witness will be inconsistent with the testimony of other prosecution witnesses is not a good reason for not calling that witness. Nor is it a good reason that the witness is regarded as "in the camp of" the accused.
[11] At [61].
The High Court then surveyed its decisions in Apostilides and in Whitehorn. The High Court also referred to its decision in R v Soma[12] at [66] as follows:-
…the use of terms such as “bound” and “duty” and “required” does not detract from the discretionary character of the prosecutor’s function in relation to the calling of witnesses. That discretionary character was affirmed in R v Soma:[13]
What is now clear is that it is for the prosecution to decide what witnesses will be called and determine the course which will ensure a proper presentation of the crown case conformably with the dictates of fairness to the accused. That power is not unconfined. In particular, if an accused objects to the course which the prosecution takes in presenting its case the objection must be resolved by applying principles which include the general rule that the prosecution must offer all its proof before the accused is called on to make his or her defence. (Footnotes omitted).
[12] (2003) 212 CLR 299.
[13] Ibid at 309 [29] per Gleeson CJ, Gummow, Kirby and Hayne JJ. See also Stanoevski v The Queen (2001) 202 CLR 115 at 127 [47] per Gaudron, Kirby and Callinan JJ.
In the appeal, the DPP submitted that the central issue in the case was whether the conduct alleged by the complainant happened at all. The only direct evidence that had happened was from the complainant. The first appellant had denied the incident and the trial judge accepted the complainant’s evidence which was corroborated by evidence of her distress given by Senior Constable Decima as well as the findings that the appellants had lied when asked by police about her presence at their home. Also, the prosecution submitted that any evidence given by Constable Harris would have corroborated and strengthened the prosecution case rather than weakened it. The High Court accepted those submissions. It held that the failure to call Constable Harris did not give rise to a miscarriage of justice having regard to the matters canvassed in the trial judge’s judgment and the circumstances set out in the respondent’s submissions at [69].
In The Queen v Douglas Victor Jensen[14] the appellant was convicted of the murder of his father. The prosecution case was largely a circumstantial evidence case. One ground of appeal which succeeded concerned the refusal of the Crown to call the brother of the accused, Mr Colin Jensen as a witness for the prosecution. The Court of Appeal of Victoria held that the trial judge had no part in deciding the validity of the prosecutor’s decision.[15] The Court of Appeal accepted that the defence case was that the Crown were unable to exclude suicide as a reasonable possibility or if not, that someone other than the applicant had killed the deceased. In an attempt to rebut that defence, the Crown had led evidence from a range of the deceased’s friends and acquaintances about his state of mind and the unlikelihood that he would have committed suicide. Mr Colin Jensen however, suggested in his witness statement that the deceased had been depressed and behaving irrationally in the years and months leading to his death.
[14] [2009] VSCA 266.
[15] At [60].
The witness statement of Mr Colin Jensen, if accepted, would show that the deceased was acting with a degree of irrationality associated with his age and physical decline. The Court of Appeal held that if Mr Colin Jensen’s evidence was accepted, it had a potential to increase the possibility of suicide and, if that possibility was not rejected, to reduce the possibility that the applicant was the culprit. As well, defence counsel wished to cross examine Mr Colin Jensen because the defendant wished to establish that Mr Colin Jensen had more reason than the applicant to murder the deceased. The court then canvassed the reason why defence counsel wished to cross examine Mr Colin Jensen including to put the suggestion to him that he was a liar and may have been the killer. Having surveyed those matters, the Court of Appeal then surveyed the reasons why the Crown would not call Mr Colin Jensen and held[16] that none of them was sufficient circumstance to establish that Mr Colin Jensen was an unreliable witness within the meaning of Apostilides.
[16] At [68].
The court held that the failure to call Mr Colin Jensen amounted to a miscarriage of justice because it deprived the jury of a different view of the deceased’s state of mind and his relationship with the appellant and deprived him of a chance of acquittal to which he was entitled. It also deprived the appellant of the ability to cross examine Mr Colin Jensen as to his motives and opportunity to kill the deceased. In those circumstances the injustice was substantial. That injustice could not be overcome by the possibility that the defence could call Mr Colin Jensen. This is reasonably obvious as it would have been necessary for the accused to attempt to cross examine Mr Colin Jensen, having called him to give evidence. This runs counter to the decision of the High Court in Apostilides.

The factual circumstances in Jensen is distinguishable from the factual circumstances of the case at bar. The failure to call Mr Colin Jensen deprived the jury of a different view of the deceased’s state of mind, his relationship with the appellant and the loss of opportunity to cross examine Mr Colin Jensen. This was in the background where the accused was suggesting that Mr Colin Jensen had both the motive and the opportunity to kill the deceased. It is in those circumstances that the injustice was very substantial. This is not that case.
In the Court of Criminal Appeal of South Australia’s decision in R v Nguyen,[17] the court considered an appeal against conviction of aggravated causing serious harm with intent to cause serious harm. The prosecution decided not to call a witness listed on the Information because it had determined that the witness was dishonest and unreliable. The Court of Criminal Appeal held that the decision not to call the witness was not in breach of the prosecutor’s duty to call all material witnesses. The second question before the Court of Criminal Appeal was whether or not the trial judge should have directed the jury that they were entitled to infer that the evidence of that absent witness would not have assisted the prosecution case and that in turn affected whether or not the jury could find the prosecution case proved against the accused beyond reasonable doubt.
[17] [2009] SASC 91.
The witness Hong had given a statement to police and said he had met the victim of the assault whilst in custody. Hong had told police that his phone had been stolen after a vehicle break in and following that, had by another phone called the victim and asked him to come to Hong’s home. Hong alleged that some time later the victim told him he knew who had his mobile telephone and arranged to meet at a pharmacy. Hong parked the vehicle at the pharmacy, left the engine running and waited for the victim to arrive for the meeting as arranged. Someone jumped into the vehicle, produced a sawn off shotgun and Hong panicked and drove away but he had still not seen the face of the person who had pulled the shotgun on him. Some seconds later, Hong said he heard a loud bang, spoke to his girlfriend who attended the pharmacy and she identified that the victim was there having been shot. Hong would not identify or could not identify the person who got into his vehicle.
On the eve of trial, the prosecution advised that it would not call Hong because the prosecutor had formed the view that Hong was not a witness prepared to tell the truth and that she would not call him. She was prepared to make Hong available to the defence but she was not prepared to call him for the prosecution.
The defence argued that due to Hong’s affinity with the victim, it would be at a disadvantage in calling him and applied for a stay of the proceedings which was refused. In the absence of any evidence from Hong, the trial judge gave a direction not to speculate on what evidence Hong might have given. The accused argued that the trial judge should have given a Jones v Dunkel[18] direction to the jury that they were entitled to infer that the evidence of Hong would not have assisted the prosecution. After discussing the decision in Dyers v The Queen[19] the Court of Criminal Appeal[20] canvassed the six proposition from the High Court in Apostilides. David J then went on to consider further the decision of the High Court in Dyers and in particular the judgment of Gaudron and Hayne JJ as follows:-[21]
As was held in Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an enquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call and identified person. There would then be real questions about whether, and how, the jury would be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the persons. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some directions of this kind can be given when a party who has called a witness does not ask questions of that witness about a particular topic.
[18] (1959) 101 CLR 298.
[19] (2002) 210 CLR 285.
[20] David J wrote the decision of the court.
[21] (2002) 210 CLR 285 at 295.
David J then referred to a number of Western Australian Court of Criminal Appeal decisions and then considered the decision of Gray J in Police v Kyriacou[22] where in Gray J addressed the remarks of Gaudron and Hayne JJ in Dyers.[23] Similar statements were made by Sulan J.[24]
[22] [2009] SASC 66.
[23] At [15].
[24] At [62]-[63].
David J accepted that the evidence of Hong was inconsistent with the victim, other witnesses and the CCTV footage which suggested he was positively dishonest.[25] It is not the case that David J was suggesting that it was necessary for the prosecutor to have formed the view that a witness was being positively dishonest. There will be many cases where a witness’s evidence is inconsistent with the victim, and with other evidence from other witnesses. In my view, this and other authorities suggest that may be a sufficient basis for the prosecutor to form the view that the witness should not be called in evidence.
[25] At [48].
In R v Terrence Chimirri,[26] the Court of Appeal of Victoria considered an appeal by the appellant Mr Chimirri who was found guilty on counts of aggravated burglary and making a threat to kill. The facts involved a domestic dispute between Chimirri and one Kylie Marshall. They had been in a relationship intermittently for many years and Marshall had stopped seeing Chimirri shortly before the date of the alleged offences. A dispute occurred about keys which Ms Marshall did not wish to return to Chimirri. She was assisted by her uncle one Aaron Manga who had taken her to a bedroom because she was screaming and quite hysterical as a result of the events of that evening involving Chimerri. When Manga did so, he saw the applicant and another male enter the house and the applicant produced a gun. Eventually the applicant pointed the gun at Manga’s head and repeatedly threatened to shoot him. This occurred inside the house and outside the house. The gun was fired before Chimirri left the area. Grounds two and three of the appeal concerned a failure of the prosecution to call evidence from Kylie Marshall about whether or not she had invited the applicant into her bedroom. It was alleged that there had been a miscarriage of justice because prosecution failed to call Marshall who was an eye witness. It was submitted by Chimirri that Marshall as occupier of the house could have given evidence about whether she had authority to allow Chimirri to enter the house and the bedroom within it. As an eye witness, she could have given evidence about the events in the bedroom, she having been a prosecution witness at the committal.
[26] [2010] VSCA 57.
Chimirri argued on appeal that the failure to lead evidence from Marshall meant the prosecution had not excluded a reasonable hypothesis consistent with her innocence so that a jury, acting reasonably, must have had a reasonable doubt as to his guilt. The court referred favourably to the decision in R v Shaw,[27] when Young CJ said as follows:-
The mere fact that a potential witness has made inconsistent statements will not generally be a reason for not calling a witness but unreliability may be supported by other considerations as well. In this case the learned judge at the outset described [the witness] as a crucial witness and so indeed she was. She was present at the time and an eye witness to the striking of the deceased by the applicant. She was the only one of those present who was not called. Moreover, in an altercation of the kind that occurred, which as [the witness] herself said happened so quickly, it is generally speaking important that all eye witnesses are called.[28]
[27] (1991) 57 A Crim R 425.
[28] Ibid at 429.
Murphy and Nathan JJ expressed similar views.[29]
[29] Ibid at 450.
The Court of Criminal Appeal identified that Marshall was an eye witness to the events giving rise to the aggravated burglary count. The reasons given by the prosecution for not calling Marshall was that a view had been formed that she would say anything to assist Chimirri and there was evidence that she had attempted to persuade Mr Manga to give evidence favourable to Chimirri. The prosecution held a statement of Mr Manga to this effect. The trial judge held that there was no miscarriage of justice.
After surveying the decision of the High Court in Apostilides, the Court of Criminal Appeal decided[30] that the failure to call Marshall did not breach the prosecutor’s duty. That decision was not based simply on the likelihood that Marshall would give evidence inconsistent with the evidence of the other witnesses. Marshall had been actively trying to affect the evidence to be given by other witnesses. The Court of Appeal said there were identifiable circumstances casting doubt on Marshall’s evidence. The prosecutor was justified in not calling Marshall as a witness or simply permitting her to be cross examined by defence counsel. To that extent, the circumstances were readily distinguishable from the decision in Jensen.[31]
[30] At [60]-[61].
[31] At [69].
The guidance to be given from these cases depends essentially upon the factual circumstances of the relevant matter for decision and consideration. The only authority that I have been able to identify that involves the question of complaint evidence (in part) is the High Court decision in Diehm. Similar to the case at bar, in that case, the complainant also gave evidence of the sexual assault upon her which was the subject of the rape charge. The High Court confirmed that there must be a proper presentation of a Crown case conformably with the dictates of fairness to the accused. Those dictates would vary according to the nature of the evidence to be given by the witnesses.
The description of such witnesses appears to have varied between a very material witness and a material witness. Ordinarily, a material witness is someone who has been intrinsically involved in the circumstances of the case and is either an eye witness or who could, absent any other reason, give direct evidence of the events complained of. In Diehm, the High Court was not satisfied that Constable Harris was a witness required to be called under the principles enunciated in Soma. There were a number of reasons. First, direct evidence of what happened could only be given by the complainant. The appellants had denied the incidents. The trial judge accepted the complainant’s evidence and that evidence was corroborated by the evidence of her distress and complaint to Senior Constable Decima. This was allied to a finding that the appellants had lied when they were asked by the police about her presence at their home.[32]
[32] Viz [67].
Those circumstances are not dissimilar to (but are not identical with) the case at bar. At arraignment, the defendant has denied the allegations of the complainant. It is a matter for me as the trial judge whether I accept the complainant’s evidence. It is then a matter where, even so, I am satisfied that the prosecution case has been proved against the accused beyond reasonable doubt. There is no independent evidence corroborating anything said by the complainant to her mother because the mother contends that her daughter is making up a story or she has imagined a story and is now trying to give evidence of it. That is not a basis to doubt the credibility of the versions to be given by the mother but it is a matter to be taken into account as occurred in Chimirri and as occurred in Nguyen. For the reasons that I have earlier expressed about the whole of the evidence to be called by the prosecutor and the mother’s publicly stated view of the daughter’s evidence, there appears to be at least some basis to and identifiable circumstances to cast doubt on the mother’s evidence.
I reiterate that it is a decision for the prosecutor to decide who to call in evidence in the prosecution case. In making that decision, the prosecution must always take into account the possibility of a miscarriage of justice when a decision is made, for example, not to call a particular witness. The decision of a prosecutor not to call a particular person to give evidence will constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. That is a question of fact in each case. That is a matter ultimately for the prosecutor. It is not a matter for me. In my view, different from the submissions that have been put to me, the case at bar may be distinguished on its facts from Kneebone and it is not correct to say that Kneebone establishes some inviolable rule. Properly understood, Kneebone is an example of the application of the decisions of the High Court on the topic.
On the question of evidence, I am satisfied from the submissions that I have heard today and the documents that I have been taken to in the application, that there are other inconsistencies in the evidence which would need to be explored. I have also earlier referred to the fact that the mother is available to be called as a witness for either party and that in those circumstances, and the submissions of the prosecutor that there would be no collateral attack upon the credit of the mother. I refer to the discussion of Doyle CJ in O’Brien on that topic. Notwithstanding the authoritative status of that decision upon me I have put that consideration to one side. Based upon the particular and peculiar facts of this matter, I would not exercise my discretion in favour of the application. I refuse the application.