R v Palmer
[2000] VSCA 236
•13 December 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.204 of 1999
| THE QUEEN |
| v. |
| MISCHA PALMER (AKA EULENE TRACEY LEE PALMER) |
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JUDGES: | PHILLIPS, C.J., BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 November 2000 | |
DATE OF JUDGMENT: | 13 December 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 236 | |
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CRIMINAL LAW: Appeals against conviction and sentence: Refusal of prosecutor to call a witness: Whether miscarriage of justice occurred: R. v. Apostilides (1984) 154 C.L.R. 563, R. v. Shaw (1991) 57 A. Crim. R. 425, R. v. Armstrong [1998] 4 V.R. 533 considered and applied: Appeal touching conviction dismissed: Appeal touching sentence allowed: Inordinate delay in prosecution for which applicant not responsible.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. N. Papas with Ms F. Stewart | Victoria Legal Aid |
PHILLIPS, C.J.:
The applicant, who is aged 29, was presented in the County Court at Melbourne on 6 September 1999 upon a presentment containing one count of intentionally causing serious injury (count 1) and one count of recklessly causing serious injury (count 2). These offences, which carried maximum penalties of 12 and a half and ten years respectively, were said to have been committed at St Kilda on 27 April 1996. The alleged victim was another young woman named Laetitia Tammy Van de Heuvel. More specifically, it was contended the offences occurred in the early hours of Saturday 27 April in the Snake Pit Bar and Nightclub in the basement of the George Hotel, Fitzroy Street St Kilda.
On 10 September 1999 the jury acquitted the applicant of count 1 and found her guilty of count 2. The applicant had no previous convictions and was remanded in custody to 13 September. On that day a plea for leniency was made and the judge received viva voce evidence and some documents and a victim impact statement (Exhibit “C”). The learned judge thereafter sentenced the applicant to be imprisoned for nine months and ordered that six months of that sentence be suspended for two years.
On 14 September 1999 the applicant lodged notices of application for leave to appeal against conviction and sentence, pleading the following grounds as to conviction:
“1.That the trial miscarried due to the failure of the Crown to call a critical eye-witness, John Seward, whose name appeared on the presentment.
2.That the trial miscarried due to the failure of the Crown to call other witnesses namely, John Chapman, Michael Champion, Alex Weis and James Kirby.
3.That the trial miscarried because the learned trial judge refused an application to discharge the jury after the foreman disclosed he had been recently involved in a “business dispute” with a relevant witness, Alex Weis.
4.That the trial judge erred in the exercise of his discretion in refusing to stay proceedings until such time as the Crown called John Seward as a witness for the prosecution.
5.In all the circumstances the trial of the applicant was unfair.”
As to sentence, she pleaded:
1.“That the sentence is manifestly excessive in all the circumstances.
2.That on the available evidence it was not open to the learned sentencing judge to make any findings of fact as to the prevalence of the type of assault the subject of the counts on the presentment.”
The applicant was released on bail on 23 September 1999.
It is now necessary to set out in summary form the evidence adduced at the applicant’s trial.
Van de Heuvel gave evidence that she had met the applicant at the George Hotel two weeks prior to 27 April 1996. She had attended with a man called David Chapman and a female friend and was introduced to the applicant and two other women. The applicant was introduced to her as the girlfriend of a man called John Seward. She recalled sitting at a table with several other women including the applicant whereupon she heard a racist comment which made her angry. She allowed that she was drunk at the time and recalled knocking over a bottle of champagne and pouring its contents over the table and over the other women. Her girlfriend told her it was time to go as she had had a bit too much. She believed she may have called the applicant “a slut” on that occasion.
Continuing her evidence Van de Heuvel said that on 27 April she arrived at the Snake Pit Bar at about 12.30 a.m. with a friend named Lance Drysdale. She met up with some female friends who left after about an hour. She then went to the bathroom and then to the rear of the nightclub to meet up with Drysdale. She saw the man Seward, whom she knew, and stopped. The applicant was introduced to her by Seward whereupon she remarked that they had not met before. The applicant responded “Yes, we have. We met two weeks prior at the George upstairs.”
Although preoccupied with looking around for Drysdale, Van de Heuvel recalled conversation about the occasion at the George Hotel two weeks earlier. The applicant said: “Well, you called me a slut two weeks ago”. The applicant was very upset. Van de Heuvel said she did not make any aggressive move to the applicant and did not threaten her. She could recall saying “Okay, well, I’ve got to go now” and turning away. She said she was suddenly struck with a glass. She felt warm blood in her eye. She stated that she reacted by reaching out and grabbing the applicant by the neck.
Cross-examined, Van de Heuvel initially denied calling the applicant a “gutter slut” on 27 April, but later agreed that she could have done so. She was also cross-examined about an application for crimes compensation she had made. She said she had been advised to do this and to seek reimbursement for medical costs. (I here interpolate that a Mr McGirr, Principal Registrar of the Victims of Crime Assistance Tribunal, was called to produce the file relating to the compensation claim. It had been struck out on 10 April 1997 and there was later correspondence from Van de Heuvel’s solicitors seeking reinstatement and the witness read out the Tribunal’s response.)
The Crown called a man named Mellios who was on duty as a “bus boy” at the Snake Pit Bar. At the time of the alleged offence he heard raised voices and saw the applicant and Van de Heuvel. He said the shorter of the two (the applicant) struck the taller in the head with a glass. He saw blood on the floor and the girl bled from her forehead. He recalled hearing the glass crack as it broke on the taller girl. He said he made his observations from about one metre away. He saw the two grab each other and attempted to intervene and separate them.
The Crown called another man named Lethlean who was on duty as a crowd controller. He heard glass shattering and went downstairs into the nightclub where he saw the two women struggling. He separated them and recognised Van de Heuvel who was his friend. He saw a bleeding open wound on her face and took her upstairs and later to hospital. Outside the hotel they happened to see the police and he drew their attention to the applicant and Seward leaving the hotel.
Having given some evidence of his experience with intoxicated persons, Lethlean proffered the opinion that Van de Heuvel was not intoxicated.
At the Alfred Hospital Van de Heuvel was examined by another prosecution witness, Dr Archer at 2.36 a.m. He found a five centimetre laceration above her left eyebrow which he characterised as superficial. It did not require more than a single layer repair but was treated with five stitches and appropriate dressing. He thought Van de Heuvel not overtly intoxicated, aggressive or abusive. Cross-examined, the doctor said no removal of glass fragments was necessary and he had not noted them.
Another prosecution witness, Detective Senior Constable Bergin, the informant, took the applicant into custody about 2.30 a.m. and later interviewed her. The interview was tape-recorded. In substance, the applicant said that she and Seward were just friends. She said upon being introduced to Van de Heuvel it was Van de Heuvel who insisted they had met two weeks previously. She had told her that she had mistaken her for another woman whereupon Van de Heuvel referred to her as one of Seward’s “gutter sluts”. The applicant repeated there had been a mistake whereupon Van de Heuvel said “If the shoe fits, if you’re a gutter slut…” and then put her hands around the applicant’s neck. She said that she was holding her glass in her right hand with her other hand free and she moved both her arms up to release Van de Heuvel’s grip on her neck. She asserted that on the evening of these incidents, Van de Heuvel was aggressive and physically intimidating her and had grabbed her neck so hard she could feel her nails digging into its back.
On 28 April, Van de Heuvel was examined by her medical practitioner, Dr Dimaria, who was also called by the Crown. She noted the sutured laceration, swelling round the eye and developing bruising, together with scratches on the left side of her neck.
Van de Heuvel was referred to yet another Crown witness, a plastic surgeon, Mr Bennett, who saw her on 3 May. He thought the laceration well healed following upon good treatment with some bruising and swelling remaining. The scar would be permanent and he proposed that Van de Heuvel wear tape over it. Mr Bennett thought it most likely that the wound was caused by a broken glass.
The applicant stood mute and called two witnesses, a solicitor named Chapman and Seward. Chapman said that on 12 April 1996 he attended a restaurant in Fitzroy Street with a man named Weis, a client, Weis’s accountant Kirby, Van de Heuvel and another solicitor named Champion. They were at the restaurant between one o’clock and four o’clock whereupon he and Van de Heuvel went to the George Hotel. There, between six and seven o’clock they were joined by two women described as “Tammy Gorton” and “Melody” or “Melissa”. The former was about five foot eight with a coffee coloured complexion and the latter taller with red hair and a peaches and cream complexion. Chapman declared that Van de Heuvel had consumed much alcohol at both places and that the conversation between her and Tammy Gorton turned “considerably nasty”. Van de Heuvel became aggressive to the other woman and poured Champagne on her. Chapman said the applicant, who was known to him, was not present at the hotel on 12 April 1996. He believed Tammy Gorton was now living in South America.
Seward said that as at 27 April 1996 he had known the applicant for about six or seven months. He was with her at the Snake Pit Bar at about 1.00 a.m. They met Van de Heuvel who was a good friend of his. He said to her “Hi, Tammy, how you going.” He introduced Van de Heuvel to the applicant. The two women talked and then started arguing with raised voices. The argument “escalated rather rapidly”. Seward heard a couple of derogatory words from Van de Heuvel and she called the applicant a slut or similar. He said Van de Heuvel launched at the applicant and grabbed her round the neck. He said the applicant was “just frozen and startled” and “had a drink in her hand”. According to him the applicant “just tried to break the hold around her neck, just with an upward motion”. He later saw the applicant being ushered towards the stairs.
Cross-examined by the prosecutor, Seward agreed the applicant was his girlfriend in April 1996 and was still his girlfriend. He saw the glass glance off Van de Heuvel’s head, fall to the ground, and break. He did not then see blood on her. He agreed that on the night of the incident he had told the police that he did not see any physical contact between the women. He was shown his police statement and agreed that he had signed it. He acknowledged prior convictions put to him after initially saying he had none apart from drink driving matters.
Some incidents at the applicant’s trial must now be set out.
After the applicant’s arraignment the prosecutor told the judge he would not be calling Seward and gave his reasons. Counsel for the applicant argued, among other things, that the judge should invite the prosecutor to review his decision. Argument then ensued as to whether the applicant’s counsel should be allowed to cross-examine Van de Heuvel about an earlier incident at the George Hotel.
On 7 September, the prosecutor advised the judge he intended to adduce certain evidence from the informant. On the following day he said he no longer sought to do so save for evidence that Seward was under subpoena and had been made available for the defence to call.
During the informant’s evidence-in-chief the prosecutor adduced evidence that he had spoken to Seward upon attending the scene on 27 April. He also sought to adduce evidence of the informant’s observations of Seward’s demeanour and level of intoxication.
During cross-examination of the informant he agreed that Van de Heuvel had been questioned at the committal hearing about an earlier incident at the hotel when it was said that those present including the solicitors Chapman and Champion and the men Kirby and Weis. Following the lunch adjournment the foreman of the jury advised he had had a business dispute with Weis whereupon counsel for the applicant made application for the discharge of the jury. This was refused.
At the end of the Crown case, counsel for the applicant renewed her contention that Seward should be called by the Crown and declared herself unable to call Weis as a result of the Foreman’s statement. The judge made a ruling on 9 September.
I now turn to the arguments of counsel. In the course of his submissions, Mr Papas, for the applicant indicated he would not advance argument on grounds 2 and 4. Ground 5, he said, represented “a conclusion rather than a separate ground”. He advanced limited argument as to ground 3 and it is convenient to now set that out.
He submitted that there was an unacceptable risk that the credibility of the witness Chapman may have been affected in the eyes of the jurors by reason of his association with the man Weis, evidence of which was given by the police officer Bergin. (It will be recalled that the Foreman of the jury had disclosed that he had recently been involved in a “business dispute” with Weis.) And so the argument postulated, as I understood it, animus in the Foreman against Weis and in turn Chapman together with consequential infection of the other jurors, the infection having set in before it was appreciated that Chapman’s evidence was undisputed. It is sufficient to say that, in my opinion, the risk suggested borders on the fanciful. As the judge’s charge reveals, in her final address to the jury, counsel for the applicant described Chapman’s evidence as establishing “beyond dispute” that the applicant had no grudge against Van de Heuvel and counsel for the Crown told the jurors that there was no dispute about Chapman’s evidence. The judge himself reminded the jurors that Chapman’s evidence “was not challenged” on its essential point and told them that they “can presume that the Crown do not take issue with that evidence”.
In my view, there is no substance whatever in this ground.
As to ground 1, Mr Papas submitted that the Crown Prosecutor erred in his decision not to call Seward as a witness. His name appeared on the presentment and the defence made it clear it wanted evidence from him before the jury. Counsel argued that Seward’s evidence was material to matters in issue during the trial; that the central incident took place over a short period in a dark, crowded location with inconsistent and interrupted lighting. It was quite conceivable, so the argument went, that different witnesses would have seen different aspects of it. The decision not to call Seward was made without due sensitivity to the dictates of fairness towards the applicant. Counsel cited, in support of the above, R. v. Apostilides[1] and R. v. Shaw[2]. In the former, the Court set out certain “general propositions”, 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 lead 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 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, will 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 will 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.”
[1](1984) 154 C.L.R. 563 at 575 - 576
[2](1991) 57 A. Crim. R. 425 at 429
Continuing, counsel submitted that the refusal to call Seward could not be justified by reference to the overriding interests of justice. There were not identifiable circumstances which clearly established the unreliability of his evidence and thereby justified the failure.
Further, the refusal, based on Seward’s demeanour in conference and the change to his version of events, was not justified in the light of his explanation as to why he had not made a full statement to the police when he was first spoken to. At most, these events might have established a suspicion of unreliability which was insufficient according to principle established by the aforementioned authorities.
So, too, a refusal based on Seward’s prior criminal history was also unjustified. Counsel cited R. v. Armstrong[3] where it was said:
“It may well have been that the prosecutor was aware of the prior criminal history of Cunningham or possessed some knowledge of his relationship with the applicant and that his suspicions were correspondingly heightened…
Even if these considerations were present to the mind of the prosecutor, which seems to be unlikely, it is difficult to see how they could justify the stance adopted by him. He carried a heavy responsibility directed to ensuring that the trial was fair from all perspectives and that the value judgments which he made were based upon the ‘overriding interests of justice’…
Had the prosecutor called Cunningham, he would, of course, have been able to elicit from the witness that he had gone to the hotel with the applicant and the general nature of their relationship. Equally, he would not have been inhibited in putting to the jury that the evidence of the witness ought not to be accepted by them or that the relationship between the applicant and the witness ought to be taken into account when considering the degree of reliance which should be placed on the evidence given.
What the prosecutor would not have been able to do would have been to cross-examine the witness and, importantly, he would not have been able to introduce his prior criminal history.
As to the latter aspect, an argument could certainly be advanced – though counsel for the respondent declined to argue – that it is in the interests of justice that a jury should know of a witness’s relevant prior convictions in order to assess the credibility of the witness. But that proposition, as a principle of general application, has not been accepted in our law and a trial does not involve the pursuit of truth by any means: Whitehorn v R (1983) 153 C.L.R. 657 at 682.”
3[1998] 4 V.R. 533 at 538
It was also submitted that a refusal based on Seward’s relationship with the applicant was flawed and partial. It was pointed out that the Crown had failed to exercise a similar discretion not to call the witness Lethlean who was a close friend of Van de Heuvel.
Counsel then turned to the matter of alleged results of the refusal. It was said that it placed the applicant in a position of considerable disadvantage and contributed to the rejection of the reasonable possibility that the complainant’s account might be untrue; that the jury might have perceived Seward as partisan and unreliable because the Crown chose not to call him although he was an eye-witness. The calling of Mellios by the Crown, so it was said, created “a very obvious distinction between the two eye-witnesses” who were not presented equally and impartially by the Crown. Next, it was contended that the cross-examination of Seward particularly as to his prior criminal history, was highly likely to have diminished the value of his evidence and that the judge should have, at the least, invited reconsideration of Seward’s calling at the end of the Crown case. All in all, counsel submitted, the refusal, when viewed against the conduct of the trial as a whole, gave rise to a miscarriage of justice. Accordingly, this Court should intervene to quash the conviction of the applicant and a judgment and verdict of acquittal should be entered by reason of the alleged offence having occurred in April 1996 with the applicant’s trial not following until September 1999.
For the Crown, Mr Coghlan also cited Apostilides and Shaw and submitted that Seward’s versions were not simply inconsistent. He referred to Seward’s police statement of 27 April 1996 and his evidence from the witness box at the committal on 27 August 1998. Counsel laid store on the conduct of the Crown Prosecutor. He had conferred with both Seward and the informant, Detective Senior Constable Bergin. He received instructions as to what Seward had said to Bergin outside the hotel and as to Seward’s prior convictions and relationship with the applicant. He had sought advice from the Crown Prosecutors and had read the relevant authorities.
Continuing his submissions, Mr Coghlan contended that the issues of Seward’s prior convictions and relationship with the applicant were not be considered in isolation. They were not, he argued, individual features which of themselves led to the prosecution decision. Finally, counsel submitted that it could not have been in the interests of justice for the Crown to call Seward in circumstances where the jurors would never be made aware of what he had said to the police on the night of the alleged offence and what had been included in his written police statement.
The Ultimate Question.
This has been variously addressed in the authorities. As has been noted in Apostilides (supra), the Court observed, “A decision of the prosecutor not to call a particular person as a witness will 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.”[4] In the same case the Court referred to the desirability of an appellate court focusing “directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome.”[5]
[4](1984) 154 C.L.R. 563 at 575
[5](1984) 154 C.L.R. 563 at 575
The Conduct of the Prosecutor.
In Apostilides it was also said:
“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.”[6]
[6](1984) 154 C.L.R. 563 at 577
In the instant case, counsel for the applicant allowed that the prosecutor at trial had conducted himself conscientiously. He had studied Seward’s police statement and deposition; he had had a conference with Seward and observed his demeanour and disposition; he had had a conference with the informant as to a conversation with Seward outside the hotel; he was given instruction as to Seward’s prior convictions and his relationship with the applicant; he sought advice from Crown Prosecutors; he had made himself familiar with the relevant authorities; at all times, beginning immediately after the applicant’s arraignment, he clearly explained his decision to the judge and gave his reasons. But, in the end, it was submitted for the applicant, “he made a mistake”.
It is convenient at this point to compare the above conduct with the conduct of Crown Prosecutors which is revealed in the leading cases. In Apostilides the prosecutor gave no reasons for his decision until after addresses had commenced. In Shaw the decision not to call the witness was a judgment formed “before the case began”[7] and the prosecutor remained unmoved by the following matters. The judge voiced the opinion, at the outset of the trial, that the witness was a “crucial witness”[8] During a submission by counsel for the accused that the relevant witness statement was consistent with the version of other witnesses whom the Crown intended to call, the judge, having read the witness’s statement, said to counsel “there are inconsistencies, but what you are saying is basically true, even though there may be discrepancies.”[9]
[7](1991) 57 A. Crim. R. 425 at 429
[8](1991) 57 A. Crim. R. 425 at 429
[9](1991) 57 A. Crim. R. 425 at 435
In Armstrong the Crown Prosecutor refused to even interview a witness (acknowledged as an eye-witness) proffered by the defence.
The Basis of the Prosecutor’s Decision.
In Apostilides the following reasons for the prosecutor’s decision were given to the court. The relevant decision was to not call two witnesses “B” and “T”. The prosecutor had been told that the witness “T” had put herself in the defence camp; he suspected that “B” and “T” had a “romantic engagement”; “B” had prior convictions. In Shaw the reason given was the making of “inconsistent statements” leading to the conclusion of an “unreliable witness”. In Armstrong the prosecutor had no belief in the “truthfulness” of the witness. In R. v. Tran[10] the prosecutor had heard the witness say before trial “I’m going to fix you guys now. Tien (the defendant) didn’t come in. I don’t care what I say as long as Tien will get off.” This led to a conclusion the witness was not truthful, unco-operative and unwilling to testify to the facts.
[10][1998] 4 V.R. 294
The relevant authorities reveal the following statements of principle on this aspect.
“The unreliability of the evidence (of the prospective witness), will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the reliability of the evidence.”[11]
(This passage was cited in Armstrong[12] .)
“The mere fact that a potential witness has made inconsistent statements will not generally be a reason for not calling the witness but unreliability may be supported by other considerations as well.” (Per Young, C.J. in Shaw[13].)
[11](1984) 154 C.L.R. 563 at 576
[12][1998] 4 V.R. 533 at 537
[13](1991) 57 A. Crim. R. 425 at 429
It is now appropriate to set out the various statements and evidence of the witness Seward. According to the informant, he spoke to Seward around about 2.00 a.m. on 27 May 1996 outside the George Hotel. After Seward had identified himself the informant asked:
“Can you tell me about your involvement with this incident tonight?” Seward replied: “All that I can say is that both of us came together to the Club, we were in there for about 50 minutes. I saw Mischa arguing with a girl called Tammy inside to the left of the Club. Tammy is a friend of my solicitor. Mischa said she goaded her, called her this and that and Tammy clashed with her.” The informant then asked: “Did you witness the assault?” Seward replied: “No, I didn’t at all. Mischa came up to me and told me to leave. We both walked out and then before I knew it, this cop came and hassled us.”
(The above was not given in evidence before the jury but it was common ground that this material was in the brief of the Crown Prosecutor at trial.)
On 27 April 1996, at about 2.45 a.m., Seward signed a written statement at the St Kilda Police Station acknowledging that it was true and correct and that he made it in the belief that a person making a false statement in the circumstances might be liable to the penalties of perjury. That statement reads:
“My full name is John Cyril Seward, my address is 18 Selwyn Street Brighton and I am a company director for CZ Seward. On the 27th day of April, 1996, I was with friends when at approximately 10/45 p.m. we attended at the street Café in Fitzroy Street, St Kilda. We stayed at the café for about two and a quarter hours.
At approximately 1.15 a.m. we went to the ‘Snake Pit’ which is under the George Hotel on the corner of Fitzroy Street and Grey Street in St Kilda. We queued to get in for about 10 minutes. We had been in the hotel for about 55 minutes. During this time I was with a friend of mine called Mischa. As Mischa and I headed towards the front door, we said goodbye to some people we knew.
I was having a conversation with a male who I now know to be in the same business as me. As I was talking to this male, I saw that Mischa was arguing with this girl called Tammy. I told both of the girls to shut up. I continued my conversation with the male and I noticed a movement of people. I turned around and noticed that Tammy was outside the hotel and a security guard had grabbed Mischa and had taken he outside. I did not see what happened to cause the girls to be removed from the hotel but they were arguing. I did not see any physical contact between the two girls at the time. (Emphasis mine.)
I followed the girls outside and spoke to Mischa. Mischa and I walked to her car and we were approached by police.”
It was accepted in argument that when Seward made this statement he did not know what account, if any, the applicant had given to the police. It was also accepted that Seward was called by the prosecution as a witness at the committal proceeding at the request of the applicant’s legal advisers.
In accordance with the usual procedure, he was there shown, after he had identified himself, the police statement he had signed. He acknowledged his signature. Asked if its contents were true and correct, he replied, “They lack quite a bit.” Invited to add or clarify something, he initially described being ushered out of the hotel with the applicant and then referred to a conversation between the applicant and Van Heuvel. He heard the latter say the word “slut”. A little later, he said, Van Heuvel “reached forth” and grabbed the applicant round the neck. Seward continued,
“…Then Mischa (the applicant), was just startled, just shocked, and terrified, and just tried to break the hold…and yes, Mischa was completely unprepared for this, she was just standing there with a drink in her hands, just enjoying a drink, which I’d bought her some time earlier. And tried to break the hold and just thrust forward. You know, she didn’t pick up a glass and smash it, she just had a glass in her hand, was grabbed round the throat, she was startled, and bang.”
Circumstances Giving Rise to a Miscarriage of Justice
In the instant case, the applicant relied on the following.
*The “singling out” of the eye-witness Seward and the cross-examination of him (particularly as to prior convictions) placing the defence at a disadvantage.
*The likelihood that the jury would have perceived Seward as partisan and unreliable because the Crown did not call him.
*The “very obvious distinction” between Mellios and Seward.
In the authorities, circumstances giving rise to a miscarriage of justice have been constituted by:
*An adverse effect by implication on a witness called by the defence whom the Crown refused to call because the jury may well have perceived that the Crown had chosen not to call him. (Armstrong)
*The introduction by cross-examination of such a witness’s prior criminal history. (Armstrong)
*The “singling out” of a witness by the Crown refusing to call that witness and then cross-examining when the witness was called by the defence. (Shaw)
*The defence having to call a witness who may be perceived by the jury as against the Crown and tainted with or by the accused. (Shaw)
The Position of the Trial Judge
It is to be noted that, during final addresses, the trial judge in Apostilides expressed considerable unease about the way the trial had developed and stated that he thought it would have been a fairer trial for the accused if the witness had been called by the Crown. The trial judge in Shaw thought the relevant witness was “crucial”. He also acknowledged that while there were “inconsistencies” in the statement of the witness, it was “basically true” that it was consistent with the version of other witnesses. He told the prosecutor towards the end of the case “it is clear that the amount of material he (defence counsel) would be able to elicit, being unable to cross-examine, would be reduced and the amount you will be able to elicit will be substantially enhanced”. He added to the prosecutor that the jury “have effectively got before them the evidence of all but (the relevant witness) in one way or another”. In the instant case, the learned judge, ruling on applications by trial counsel for the applicant at the close of the Crown case that he urge the prosecutor to reconsider his decision; for a stay in the matter until the prosecutor changed his mind or for the discharge of the jury, expressed no misgivings at all as to the conduct of the trial.
I now turn to my conclusions. I shall cite again the relevant passage of Seward’s deposition. (It will be recalled that having described Van de Heuvel as reaching forth and grabbing the applicant round the neck, the witness continued.)
“…Then Mischa (the applicant), was just startled, just shocked, and terrified, and just tried to break the hold…and yes, Mischa was completely unprepared for this, she was just standing there with a drink in her hands, just enjoying a drink, which I’d bought her some time earlier. And tried to break the hold and just thrust forward. You know, she didn’t pick up a glass and smash it, she just had a glass in her hand, was grabbed round the throat, she was startled, and bang.”
It will be observed that Seward was prepared to depart the realm of observation and hearing and to describe the thought processes, feelings and emotions in the applicant, pitched squarely at her exculpation in terms of her defence of self-defence and inadvertent contact. The passage reads like an advocate’s address. It would constitute to any lawyer reading it, I should have thought, a flagrant abuse of the privilege of giving sworn evidence in a court of law.
The instant case is most definitely not one of “inconsistent” statements. On the critical matter of what Seward saw or did not see, the deposition and the two statements to the police flatly contradict one another. Prima facie, either the written statement or the deposition is perjurious. It has been stressed in argument that Seward gave an “explanation” at the committal for the contradiction. It is perhaps more accurate that he gave several explanations. These included that it was “late at night”; that he was “reluctant to become involved”; that it was “late” and that he gave a description “in cursory terms”. He claimed that he had told Detective Senior Constable Bergin that an argument had occurred and “one girl grabbed my girlfriend around the throat, and being terrified she just thrust her arms up and that was it”. Significantly, this claim was not put to Bergin in cross-examination at the committal. In my opinion, these “explanations” will not survive the following circumstances. The applicant was Seward’s girlfriend. He must have known that she was at least a suspect in serious circumstances. A conscientious counsel was quite entitled to dismiss them.
I now turn to the matters of whether the prosecutor’s decision was made with due sensitivity to the dictates of fairness towards an accused person and whether it can be justified by reference to the overriding interests of justice. There is also the matter of whether there were, in the instant case, identifiable circumstances which clearly established the unreliability of the relevant witness.
To take up the last mentioned matter, in my opinion there were, in the instant case, circumstances which did clearly establish such unreliability. The conflict between the relevant statements went far beyond inconsistency. The partisanship of Seward was manifest. His “explanations” for stark conflict lacked credence. At the least, he stood in the shadow of perjury. It cannot be, I think, that it was in the interests of justice that he be called by the prosecution in circumstances where the detail of his various accounts would not be before the jury. On the contrary, in my view it was in the interests of justice that this detail be provided. If I be correct in this view, then it mattered not that Seward was “singled out” or perceived as partisan or that there was a “very obvious distinction between him and Mellios”. His prior conviction for stating a false name and address to the police was, in my opinion, part of the material on which it was proper for the jurors to make an assessment of him. That he got into difficulties with other aspects of his criminal record was entirely due to his tendency to hedge in his cross-examination.
If I may say so, the other impugned reasons for the prosecutor’s decision were dealt with in argument in isolation. Thus canvassed, the arguments that they were individually insufficient presented some attraction, but that is not this case. It is apparent that they were part of a collection of factors upon which the relevant decision was made.
I would not uphold ground 1 and it is unnecessary that ground 5 be given separate consideration. It follows that I would dismiss the application touching conviction.
The application for leave to appeal against sentence. It was submitted that on behalf of the applicant that the sentence was manifestly excessive in all circumstances. In particular, it was submitted that the judge did not give sufficient weight to the following matters:
“(a) The lack of criminal history of the applicant.
(b) The previous good character of the applicant.
(c) The lack of subsequent offending by the applicant.
(d)The delay of approximately three and a half years between the commission of the offence and the date of the sentence, which was not attributable in any way to the applicant.
(e) The lack of pre-meditation.
(f) The elements of verbal provocation.
(g) The evidence called on the plea.
(h) The potential loss of career.
(i)The Crown position that this was a serious injury at the lower end of the range of serious injuries.
(j)The Crown position that a wholly suspended term of imprisonment was within the range.”
It is fair to say that counsel for the applicant placed the factor of delay and an alleged insufficient weight being given it most prominently in his submissions. He contended, should the application touching conviction fail, that this Court should intervene and a sentence of imprisonment, entirely suspended, should be substituted.
I did not understand counsel for the Crown to gainsay this contention. On the plea the Crown Prosecutor allowed that such a sentence was within range.
In his reasons for sentence the learned judge said to the applicant:
“I take into account that these charges were hanging over your(head) through no-one’s fault for some three and a half years, and that during that time you continued with your otherwise law abiding life.” (390)
In my opinion, the delay in this prosecution was a very significant matter. It ought to have been, by its very nature, a matter prosecuted with despatch. The reason or reasons why this did not occur are not clear. What is clear is that the delay is not to be laid at the door of the applicant. I cannot escape the plain impression that insufficient weight was given to this factor in the sentence imposed.
I would uphold ground 1 of the grounds touching sentence. It is unnecessary to consider the other ground pleaded. Should the other members of the Court agree, I would propose that the sentence imposed in the lower Court be varied so as to provide that the entire sentence be suspended for two years. Otherwise, I would confirm the sentence.
The evidence as to the applicant’s character presented on the plea was very impressive. It is now some four and a half years since her commission of this offence
in April 1996. It is to be hoped she is now far removed from the milieu of excessive drinking and dubious company in which she was involved at that time.
BATT, J.A.:
I agree with the Chief Justice as regards conviction and sentence, but I desire to state in summary form my reasons for rejecting the first ground of proposed appeal relating to conviction, which was, in my view, the only ground of substance relating to conviction. The question is whether a miscarriage of justice occurred in the trial so as to require the application to be allowed under the third limb of s.568(1) of the Crimes Act 1958. The Queen v. Apostilides[14] establishes that the refusal by the prosecutor to call a witness will only be justified by reference to “the overriding interests of justice” and that such occasions are likely to be rare. I have come to the conclusion that this is one such occasion. I do so for one reason only, though certain other factors support it. The one reason is that it was, in my view, in the interests of justice that the jury should know that the witness Seward had, no more than two hours after the altercation, made a statement effectively on oath in which, contrary to his partisan and tendentious evidence at the committal hearing, he had said, “I did not see what happened to cause the girls to be removed from the hotel but they were arguing. I did not see any physical contact between the two girls at the time”, and that it was highly unlikely that the jury would ever know of that statement if the Crown called Seward. The jury, if unaware of the terms of the statement, would have considered their verdict on a false or incomplete basis. It was, I suppose, possible that, had the prosecutor called Seward, the prosecutor would have obtained leave to cross-examine him as being an adverse witness.[15] If the Crown had called Seward and obtained leave to cross-examine him as adverse the applicant would have been no less badly off than she was by having to call him herself. Therefore
that possibility may be put aside. Because the overriding interests of justice required that the jury know of Seward’s prior statement I consider that there was not a miscarriage of justice as the result of the prosecutor’s refusal to call him.
BUCHANAN, J.A.:
[14](1984) 154 C.L.R. 563 at 576.
[15]It is unlikely that the prosecutor would have been able to do more than prove the making of the inconsistent statement; cf. R. v. Thynne [1977] V.R. 98, where the truth of the statement was admitted so that it was able to be tendered.
I agree with the Chief Justice that the application for leave to appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be granted. I agree with the reasons stated by the Chief Justice and Batt, J.A. and with the sentence proposed by the Chief Justice.
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