R v Perrine

[2021] NSWDC 241

District Court

New South Wales

Medium Neutral Citation:

R v Perrine [2021] NSWDC 241

Hearing dates:

31 May 2021

Date of orders:

1 June 2021

Decision date:

01 June 2021

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

The Crown’s application for leave to re-open its case and recall Officer Kim is refused.

Catchwords:

EVIDENCE — Course of evidence — Re-opening of Crown case after closing of defence – Recall Crown witness

Cases Cited:

Hofer v R [2019] NSWCCA 244

Killick v The Queen (1981) 147 CLR 565

Shaw v The Queen (1952) 85 CLR 365

The Queen v Chin (1985) 157 CLR 671

Category:

Procedural rulings

Parties:

Regina
Jean Cedrick Perrine (Accused)

Representation:

Counsel:
Ms T Hennessy (Accused)

Solicitors:
Director of Public Prosecutions NSW (Crown)
Legal Aid NSW (Accused)

File Number(s):

2020/107366

Publication restriction:

None

Judgment

1. Jean Perrine is being tried on a charge of cultivating, by enhanced indoor means, a commercial quantity of prohibited plants, namely cannabis. One major issue in the trial is whether the actions of Mr Perrine were done as a consequence of duress. Disproving the existence of duress was not an aspect of the Crown case because there was no evidence that raised it.

2. Mr Perrine was interviewed twice in recorded interviews, and no mention was made by Mr Perrine of the threats, guns and fear of death that Mr Perrine has given evidence about, although it may be observed that neither interview embarked on a close investigation of the motivation for Mr Perrine being involved in the cannabis cultivation.

3. During Mr Perrine’s evidence-in-chief, he was invited to give reasons for why he had made no disclosure to the police during the interviews of the threats of which he had testified. He provided answers, satisfactory or otherwise, to those questions. At the close of his evidence-in-chief, there was no evidence or any suggestion that he had informed the police of the threats. There was, however, evidence that he had led the police to a house in Busby where one of the principals of the cannabis operation may have been located. That event had been the subject of evidence both from the police and the accused.

4. The cross-examination of Mr Perrine commenced with the Crown asking the rather wide question: “The evidence you gave yesterday, in particular the evidence of threats and guns. Have you ever told that to any police officer at any stage?” [1] The answers that followed from Mr Perrine were not without complications, but in substance were to the effect that on the trip to Busby, Mr Perrine did tell Officer Kim that he was threatened and that, “they were dangerous people”, [2] although Mr Perrine also conceded that he could not recall the exact words and was “more concentrating on the facts of the, you know, the house in Busby than anything else”. [3]

   1. T137/15.

   2. T139/39.

   3. T138/10.

5. The Crown now applies on a voir dire or Basha application for leave to recall Officer Kim to give evidence denying those things were said to him as testified by Mr Perrine, which the defence opposes. It was common ground that the communication to the police of any threat to Mr Perrine had not been raised by the defence at any time previous to the cross-examination of Mr Perrine.

6. The Crown conceded that the Crown did not have instructions, and thus did not know, whether Officer Kim denied, accepted or did not recall whether he was told, during the trip to Busby, about any threats, thus indicating that the propositions put to Mr Perrine that he never mentioned the threats to Officer Kim had a less than solid foundation. No objection was taken to Officer Kim giving evidence on the application. He testified that he spoke at other times to Mr Perrine about the lady (the purported principal of the cannabis operation): “We spoke on the phone a number of times, we spoke in person maybe once or twice before - before that occasion, but there was nothing different”, [4] but kept no notes of any of those occasions and denied being told of threats or dangerous people.

   4. T239/20.

7. The authorities of Killick v The Queen,[5] The Queen v Chin [6] and Shaw v The Queen [7] establish that the Crown should only be allowed to reopen its case in circumstances which are “very special” or “exceptional” as stated in Chin at 676-677 (omitting citations):

“The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen (6); Killick v. The Queen (7) and Lawrence v. The Queen (8). The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although 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. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait (9)) and the need to give it could have been foreseen it will, generally speaking, be rejected.

The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue.”

5. (1981) 147 CLR 565.

6. (1985) 157 CLR 671.

7. (1952) 85 CLR 365.

8. In the present case, this is not “an issue the proof of which did not lie on the prosecution”, but I also accept it was not reasonable for the Crown to have foreseen the need for the additional evidence from Officer Kim. That perceived need has arisen because the Crown received a different answer than expected to the wide question asked of Mr Perrine.

9. I have also been referred by the Crown to Hofer v R [2019] NSWCCA 244 and the helpful remarks of Fullerton J at [106] to [118]. However, that passage contemplates a circumstance of the Crown being granted leave to reopen “before embarking upon a cross-examination of the accused”, a procedure which is unavailable in the circumstances of this case because the relevant evidence was given in cross‑examination. As the Crown frankly conceded in submissions, “[I]t may be the case that these questions should not have been put to the witness,” that is, to the accused. [8] The circumstance that a question should not have been put, at least in the wide form it was asked, is a factor against the grant of leave. A grant of leave would allow the Crown to benefit from its own wrong.

   8. Crown’s written submissions, undated.

10. What directions might have to be made in respect of the accused’s evidence on these points is not a matter to be decided on this application.

11. The Crown also asserts that the recall of Officer Kim should occur “[i]n fairness to the accused”, [9] although the defence does not seek that course.

    9. Crown’s written submissions, undated.

12. Four matters seem to me to be of importance.

13. First, the Crown has elicited evidence from the accused of conversations without first obtaining instructions about that from the police officers. The issue did not exist before the cross‑examination, and the Crown accepted that perhaps the questions should not have been asked.

14. Secondly, the inference arising from the careful examination by the defence on the reasons why matters were not disclosed to police in the interviews indicated that the defence did not propose to elicit evidence about conveying information of the threats to the police at other times.

15. Thirdly, the existence or otherwise of the threats and reasons given for why these matters were not raised by the accused in the recorded interviews seem to be far more significant in the context of the trial than historical recollections about vague conversations.

16. Fourthly, to allow Officer Kim to be recalled at the conclusion of the defence’s evidence would give to his evidence unfair weight.

17. In these circumstances, I am not persuaded that the circumstances are so special or exceptional that leave should be granted for Officer Kim to be recalled to give evidence to deny an unspecific conversation about a year earlier, of which he had no notes.

18. The Crown also sought leave to recall Officer Kim in respect of the evidence about the location of the Busby house by Mr Perrine. The Crown put to Mr Perrine that he was lying about telling Officer Kim about the location of the house in Busby, even though Officer Kim accepted that Mr Perrine did indicate a house. [10] That matter was the subject of evidence by Officer Kim and Mr Perrine, largely uncontroversial, and constitutes no basis for Officer Kim to be recalled.

    10. T109/48.

19. Accordingly, the Crown’s application for leave to re-open its case and recall Officer Kim is refused.

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Endnotes

Decision last updated: 09 June 2021