R v Matthew James Morris

[2008] NSWDC 27

CITATION:	R v Matthew James Morris [2008] NSWDC 27
HEARING DATE(S):	8 February 2008
JUDGMENT DATE:	8 February 2008
EX TEMPORE JUDGMENT DATE:	8 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Phegan DCJ
DECISION:	Leave granted to re-open Crown case
CATCHWORDS:	Leave to Crown to re-open Crown case after closing of evidence - Absence of expert evidence
CASES CITED:	Shaw v The Queen (1952) 85 CLR Killick v The Queen (1981) 147 CLR Lawrence v The Queen (1981) 38 ALR 1 R v Chin (1985) 157 CLR Wasow (1985) 18 ACrimR 348 Rend v The Queen [2006] NSWCCA 41
PARTIES:	NSWDPP Ross Hill & Associates
FILE NUMBER(S):	06/31/1471
COUNSEL:	Mr G Fatches Ms S Kluss

- 1 -

JUDGMENT

1 HIS HONOUR: I will first rule on the application of the Crown to re-open the Crown case in order to call further evidence which is best explained by a brief review of the evidence adduced in the course of the cross-examination of the complainant.

2 The complainant was presented, in the course of cross-examination, with a mobile phone which, it is now established, at the time of the commission of the alleged offences, belonged to the accused.

3 The complainant was shown two video clips which had been recorded on the phone, and which bore a date stamp respectively of 6 minutes past 4.00pm and 2 minutes past 4.00pm on 30 July, 2006. The significance of that date is that it was the date of one of the alleged offences on which the accused now stands trial which is the subject of Count 6 on the indictment:

“That on 30 July, 2006 at Port Macquarie in the State of New South Wales the accused did have sexual intercourse with [the complainant] without her consent and knowing that she was not consenting."

4 It was evidence of the complainant in-chief that this particular incident involved an episode of forced oral sex in the course of which she was held by her hair by the accused and that he, at one point, having slapped her across the face with his penis, ejaculated, in part, at least ejaculated into her mouth at which point his penis penetrated her mouth.

5 The video clips to which I referred depict an incident involving the accused and the complainant. The complainant admitted that they were the parties depicted in the video clips, engaged in an act of oral intercourse which, from all appearances, was consensual and which bore none of the features of lack of consent or force of the sort described by the complainant in her evidence–in-chief.

6 It was put to the complainant that this was a video clip of the incident which she had described as involving forced oral sex and that, in fact, she had, as shown on the video clip, consented to the act of fellatio.

7 There are a number of occasions, which is not necessary to revisit for the purpose of this application, where questions arose concerning the time at which a particular incident occurred. For the purpose of this application, it can be assumed that the alleged offence occurred at about 4.00pm on 30 July 2006 and the incident depicted on the video as purporting to represent the same incident, but an incident very different to that described in the complainant's evidence took place later.

8 At the close of the accused's case - some evidence was called from other witnesses in the accused's case but the accused himself who elected not to give evidence - there had not been any further evidence called going to the incident recorded on the video clip. The only evidence in that respect was that of the complainant who repeatedly denied that the incident shown on the video clip occurred on 30 July 2006. She admitted that such an incident had occurred at some earlier date and had been recorded by way of the video clip which had been displayed on the mobile phone. No further evidence, either in the Crown case or in the accused's case, had been called addressing the complainant’s evidence.

9 There was the evidence of Mr Fox who was engaged at one point and instructed by the accused concerning the material on the video of which he took possession, but his evidence did not address the question which remains unresolved, that is whether there were any means which could have artificially associated with the date which appeared on the video clip with the incident depicted on that video clip.

10 Mr Fox's evidence could not throw any further light on the connection between the two, except to the extent that he observed what has already been shown to the jury and is now a matter of evidence since the tender of the mobile phone itself.

11 In the course of cross-examination of the complainant at the time the video clips were shown to her, she was referred to the dates depicted on one of the video clips 30 July, 2006. The question was put by counsel for the accused, which for the record appears on line 53 of page 148 of the transcript of evidence of 4 February, 2008, the second day of the trial:

“Q. I put it to you that the first video that you saw was taken at 6 minutes past 4 on 30 July?
A. Dates can be changed on phones."

12 At that point I intervened to explain to the complainant that that answer could not be of any weight as evidence because such an opinion could only be given by an appropriately qualified expert. Expert evidence of that kind was not called and the question which remains was that gap in the evidence which was the principle reason for the Crown's application.

13 The question which has not been addressed in the evidence to date is whether the date and time shown on a video clip saved on a model of mobile phone which belonged to the accused on which the video clip was saved could be a date and time other than that on which the video was actually filmed.

14 There was evidence of the date of the purchase of this particular mobile phone and the complainant's evidence that the events depicted on the video clips had occurred at some time well before that date. Such evidence raises the questions of whether the video clip could have been transferred from some other device such as another mobile phone, and whether, in that process, a date could be superimposed on the video clip which had been filmed on some earlier date.

15 The Crown's application is to re-open the Crown case to call evidence on those questions and that application has been opposed. It has been opposed relying on authorities which I will now review insofar as they are of assistance, most important is the decision of the R v Chin (1985) 157 CLR 671 and in particular a passage from the joint judgment of Gibbs CJ and Wilson J at page 676. I note that Brennan J (as he then was) dissented. The judgment of Gibbs CJ and Wilson J was part of a majority of the Court, including Dawson and Mason JJ. The judgment has been applied in more recent cases, including a decision of the New South Wales Court of Criminal Appeal. The passage at 676 which follows a review of other earlier decisions which I will identify without going into detail; a case of Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565 and Lawrence v The Queen (1981) 38 ALR 1.

16 Following their reference to those cases their Honours stated the following general principle:

“The trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence. He should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen."

17 That is a general principle which I am bound to apply, particularly because of its subsequent approval and application in later cases. I refer in particular to the Court of Criminal Appeal decision of Rend v The Queen, [2006] NSWCCA 41. In a judgment of James J, with which the other members of the Court of Criminal Appeal concurred, his Honour, addressed this particular matter which was one of a number of issues raised in the appeal: at [72]

“The principles that govern the exercise of the discretion of a trial judge to permit the Crown to call evidence-in-reply are well established in R v Chin, (1985) 157 CLR, 671 at 676. At 16, Aus Crim R 147 at 151, Gibbs CJ and Wilson J said,” (at [72])

18 His Honour proceeded to quote at greater length from the page which I have already quoted.

19 I acknowledge, in citing those decisions and in giving some emphasis to the passage in Chin, that there does appear to have been a significant change of direction in the view of appellate courts on the exercise of this discretion. I say that in particular because of the decision on which the Crown relied, an earlier decision of the New South Wales Court of Criminal Appeal in the case of Wasow, in which the judgment of the Court was delivered by Street CJ and I quote from his judgment in that case which is reported in (1985) 18 ACrimR 348. The relevant passage appears in the judgment at 350:

“There are many cases in which, where the presiding judicial officer has refused such leave, that is of leave to the Crown to re-open the Crown case, an appellate Court has intervened by holding that the discretion reposing in the judicial officer ought to have been exercised in allowing the re-opening."

20 Preceding that statement, his Honour had also referred to earlier cases including the case of Shaw which the High Court also cited in Chin.

21 That expresses a general principle of a very different kind from the one stated by the High Court and subsequently adopted by the Court of Criminal Appeal. It is, with respect, regrettable that, at least in the Court of Criminal Appeal in Rend nothing was said about the decision in Wasow.

22 Having said that, I have to accept that a statement of the High Court of a more recent time, subsequently endorsed and quoted with approval by the Court of Criminal Appeal, must prevail as a matter of principle. But the law does seem to have changed direction.

23 Accepting that the general principle as stated in the High Court must now guide this Court, there are two matters which have to be addressed. One is whether the circumstances are “very special or exceptional” and the other is whether the Crown ought reasonably to have foreseen, at some earlier stage than when the application was made, the need to call additional evidence.

24 Taking those in turn, I am satisfied firstly that this is a case of special and exceptional circumstances. The evidence which is the subject of the application is of central importance in two ways; first , it goes fundamentally to the Crown's ability to make a case on the sixth count. Secondly, it also is of more pervasive importance, on the credit of the complainant, which may, however carefully the jury is instructed to treat each of the counts independently of each other, affect the jury's assessment of the complainant on other counts particularly those going to sexual assault.

25 The evidence with which I am concerned is of a very different order from that in the cases which I have cited and, therefore, while I accept the general principle to which I have been referred as enunciated in Chin, the facts in that case, and the other cases to which I have been referred, do not offer me any assistance. I have to address the facts of this case independently, but measured against the statement of general principle. In doing that, I am satisfied that the circumstances of this case are special and exceptional. They touch on a matter of fundamental significance to at least one count in the indictment. The issues identified earlier remain unresolved either way by any appropriate expert evidence. Even if in the end such evidence is conflicting, the jury will still be much better informed than they are at this stage.

26 On the question of reasonable foreseeability, this is not a matter as easily resolved in my view as the question of special and exceptional circumstances. It was submitted by counsel for the accused that from the time of the evidence to which I have already referred, that is from the time that the video clip was presented to the complainant and I made the observation, at least by implication, that this raised a matter which could only be satisfactorily resolved by expert evidence, the Crown was on notice that evidence of that kind would need to be called. Therefore, this was not a case where it could be said that the Crown could not reasonably foresee, from that point, the need to call that evidence. A subsequent application made, as it was, after the close of the case for the accused, was far too late to justify making an exception. There is, if it were to be considered in isolation, considerable weight to that submission. However, I have to refer, at this stage, to what also transpired in the course of the complainant's evidence.

27 This matter was, when further exchanges occurred between myself and counsel, aired in the absence of the jury, and in the course of that discussion counsel for the accused made the following statement and I quote from page 145 of the transcript:

“There will be evidence led in the accused's case that it was a relevant occasion.”

That is a reference to the identification of the acts depicted on the video as having occurred on 30 July, 2006, Counsel went on to say:

“In relation to the video, there is expert evidence available as to the date and time of the relevant occasion and given that that is the situation, the fact that that was consensual behaviour on the part of the witness, in my submission is relevant."

28 This was a comment obviously addressed to what was then an argument about relevance which is not relevant to this application but does help to explain how that prospect arose. What is important, is the assertion, in open Court but not before the jury, that expert evidence would be led on the video as part of the accused's case.

29 That assertion puts a very different complexion on the question of reasonable foreseeability on the part of the Crown. At that stage the Crown was entitled to assume that evidence would be called, and it is the Crown's submission that the Crown was content to allow the evidence of the accused's expert to address this issue without calling independently any evidence on the part of the Crown. It was only when the accused's case was closed, and it then became clear that no such evidence was to be called, that the Crown was on notice of that. The application was made shortly after that. The Crown acted in good faith in allowing the matter to proceed without taking any steps to call such evidence as part of the Crown case. It was indicated from the bar table that there had been some further informal communication which does not have the same status as statements made in open Court. I accept that the Crown was told by counsel for the accused that he could not assume that there would be any evidence called in the accused's case, including evidence from the accused himself. I have considered that aspect of the matter very carefully. In my view the Crown was entitled to put greater weight on the more specific statement made about the expert evidence before me than the general warning issued on a more informal basis. The Crown was entitled to proceed on the assumption that, whatever else may have or may not be presented in the accused's case, there would be evidence addressing the question of the date of the video clip.

30 In those circumstances I am satisfied that the need to call further evidence was not reasonably foreseeable, in a sense sufficient to deprive the Crown of leave to re-open the Crown case consistent with the principles enunciated in Chin. However, I should add this. I made statements in the context of the submissions made in respect of this application that I would have expected, as a matter of precaution, that the Crown might have taken some steps at least to have an expert available should circumstances unfold in the way that they have. That would have avoided the delay which has now occurred in the time which has been taken in finding an appropriate expert to instruct the Crown, to have that person available, and in turn to make fresh arrangements for the accused's expert to be available to give evidence. That has involved a delay of some 24 hours before it will be possible to proceed with the evidence. That is most regrettable. It could have been avoided if the Crown had acted more promptly without the need for any direction from me to that effect which would have been entirely inappropriate.

31 However, such unnecessary delay is not sufficient to deprive the Crown of leave otherwise available to re-open. For reasons which I have already given, and I do not propose to repeat, I am satisfied that this is a case where an exception to the general rule should be made and that leave be granted to the Crown.

32 Secondly, I have notice of an application from the accused that, as a result of the delay which will now be caused by granting the Crown’s application the accused’s case has been so prejudiced that the jury should be discharged.

33 I am not satisfied that such incurable prejudice has been caused. Acknowledging the efforts made by counsel on both sides to minimise the delay and I refer in particular to the considerable effort on the part of counsel for the accused in making arrangements which were of a particularly complicated and difficult kind, to have the accused's expert available, the delay which has been caused will not cause any prejudice to the accused which cannot be more than adequately addressed by reassurances on my part to the jury, which I intend to provide in due course.

34 The jury will be told that a considerable amount of time and effort was spent in addressing a matter which arose at a late stage and any delay that resulted was not in any sense and should not be treated as a consequence of anything done by the accused. Subject to that there is no basis on which it could be said that what has occurred has in some way damaged irreparably the accused's case.

35 One final matter which has relevance to the Crown's application, as well as that of the accused, is that to leave the evidence on the matter which was the subject of the Crown application would be dangerous, as much for the accused’s case as the Crown’s case and the credit of the complainant. There is a very real risk, in my view, that if the present state of the evidence were left unaddressed, however carefully the jury were directed by me, that members of the jury would adopt a view based on their own experience, which may be imperfect, of mobile phones, to conclude, as suggested on the part of the complainant, that the date attributed to a video clip of this kind can be very easily manufactured artificially. As the evidence now stands that is precisely what the jury have been left to decide for themselves, however carefully they are directed about that matter. That is, in my view, a danger to the accused and not to the complainant. Not only should the Crown case be re-opened in order to provide the jury with better evidence on that particular issue but it follows that, in doing that and in the time involved in calling that evidence there is no inevitable and incurable prejudice to the accused. If anything, the result may be the reverse.

36 That concludes what I have to say with regard to both applications. I confirm the Crown's application is granted and the accused's application is refused.

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