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R v SH, MV and KC

R v SH, MV and KC

Case [2011] ACTSC 198 17 November 2011

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R v SH, MV AND KC
[2011] ACTSC 198 (17 November 2011)

EVIDENCE – witnesses – unfavourable witnesses – advanced rulings on whether leave should be given to cross-examine witnesses.

EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses.

Crimes Act 1900 (ACT), s 54
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A
Evidence Act 1995 (Cth), ss 11, 38, 41, 55, 135, 137, 192, 192A

Wigmore, Evidence, Chadbourn Revision (Little Brown & Co: Boston, 1974) Vol 8
ACT Director of Public Prosecutions, Prosecution Policy

Whitehorn v The Queen (1983) 152 CLR 657
Tran v The Queen (2000) 105 FCR 182
McLellan v Bowyer (1961) 106 CLR 95
Director of Public Prosecutions v Nair (2009) 236 FLR 239
Burrell v The Queen (2007) 190 A Crim R 148
DPP v McRae [2010] VSC 114
R v Souleyman (1996) 40 NSWLR 712
R v Lozano (NSWCCA, No 60487 of 1996, 10 June 1997, unreported)
Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418
Velevski (No 2) (1997) 93 A Crim R 420
Cakovski (2002) 133 A Crim R 18
R v White (2003) 140 A Crim R 63
R v Fowler [2000] NSWCCA 142
R v Taylor [2003] NSWCCA 194
Radisich v Molina & Ors [2009] FMCA 1121
R v Anyang (Ruling No 1) [2011] VSC 31
R v Ronen & Ors [2004] NSWSC 1298
Lee v The Queen [2009] NSWCCA 259
Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560
Klewer v Walton [2003] NSWCA 308
R v Pantoja (NSWCCA, No CCA 60174/97, 5 November 1998, unreported)

Pantoja v The Queen [1999] HCATrans 599
R v Kneebone (1999) 47 NSWLR 450
R v Yates [2002] NSWCCA 520
R v Shamouil [2006] NSWCCA 112

EX TEMPORE JUDGMENT

No. SCC 2 of 2010
No. SCC 3 of 2010
No. SCC 4 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 17 November 2011

IN THE SUPREME COURT OF THE     )          No. SCC 2 of 2010
  )          No. SCC 3 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 4 of 2010

R
v

SH, MV AND KC

ORDER

Judge:  Refshauge J
Date:  17 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

The Crown have leave to cross-examine witnesses MBO, VT, TRS and RAP should they give evidence consistent with those parts of the statements they have made to police as set out in Annexure B to the Reasons for Judgment given on 17 November 2011 as to the demeanour of the complainant when she returned to the College in the afternoon of 18 June 2009, which includes the circumstance under which they saw the complainant and any issues of credibility relating to these specific matters.

On 19 June 2009, the complainant in these proceedings, after using some marijuana that morning, went with the three accused from a Canberra college to a house where the four engaged in sexual acts including sexual intercourse.
The complainant says that the acts were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v SH, MV and KC

Details

AGLC: R v SH, MV and KC [2011] ACTSC 198
Case: [2011] ACTSC 198
Decision Date: November 17, 2011

CaseChat Overview and Summary

The case of R v SH, MV and KC involved a dispute between the Crown and three defendants concerning allegations of sexual assault. The case was heard in a relevant Australian court. The primary issue before the court was whether the Crown should be granted leave to cross-examine specific witnesses, who had provided statements to the police, on particular aspects of the complainant's demeanour and credibility when she returned to the College on the afternoon of 18 June 2009.

The court had to determine the appropriate test for granting leave to cross-examine witnesses, particularly unfavourable ones, and assess whether the proposed cross-examination would be relevant and necessary to address issues of credibility concerning the complainant's demeanour and circumstances upon her return to the College. The court needed to balance the need for a fair trial against the potential prejudice that might result from cross-examination of these specific witnesses.

In reaching its decision, the court considered the nature of the witnesses' statements, the relevance of the proposed cross-examination to the issues in dispute, and the potential impact on the fairness of the proceedings. The court concluded that the Crown should be granted leave to cross-examine the specified witnesses on the matters outlined in Annexure B to the Reasons for Judgment, which detailed the demeanour of the complainant and the circumstances under which she was seen by the witnesses. The court found that this cross-examination was necessary to address issues of credibility in relation to these specific matters.

The final orders of the court granted the Crown leave to cross-examine witnesses MBO, VT, TRS and RAP on the specified aspects of the complainant's demeanour and circumstances if they were to give evidence consistent with the statements they had made to the police. This decision aimed to ensure a fair trial while addressing the issues of credibility raised by the defence.

Orders

Orders of the court

The Crown have leave to cross-examine witnesses MBO, VT, TRS and RAP should they give evidence consistent with those parts of the statements they have made to police as set out in Annexure B to the Reasons for Judgment given on 17 November 2011 as to the demeanour of the complainant when she returned to the College in the afternoon of 18 June 2009, which includes the circumstance under which they saw the complainant and any issues of credibility relating to these specific matters.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v SH, MV and KC [2011] ACTSC 198

Most Recent Citation

R v Debresay (Ruling No 4) [2016] VSC 643

Cases citing this decision · 4 of 4 shown

R v Salcedo; R v Stretton
[2018] ACTSC 96 Para 1

…an alibi for Mr Salcedo, which is not favourable to the Crown case. The Crown Prosecutor referred to the judgment of Refshauge J in R v SH, MV and KC [2011] ACTSC 198; 6 ACTLR 1 (‘ R v SH’ ), where at [35] his Honour stated that:…
R v Debresay (Ruling No 4)
[2016] VSC 643 Para 1

…must take into account the matters specified in s 38(6) and s 192[9], specifically: [9] Staneovski v R (2001) 202 CLR 115; see also R v SH, MV and KC [2011] ACTSC 198 ( ‘SH’ ).…
R v Duffy (No. 4)
[2015] NSWSC 493 Para 12

…ation, I drew attention to a passage in the judgment of McClellan CJ at CL in R v Le (2001) NSWSC 174 at [15] and a passage in the judgment of R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1 at [35] by Refshauge J. In that judgment I considered that those statements of principle justified the leave to the Crown to cross-…
R v Duffy (No. 3)
[2015] NSWSC 481 Para 9

…In a somewhat similar vein Refshauge J in R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1 having reviewed a number of authorities on the issue of unfavourable evidence:…

View all 4 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Anyang (Ruling)
[2011] VSC 31 Para 12

…at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen & Ors [2004] NSWSC 1298 (at [49]) and Lee v The Queen [2009] NSWCCA 259 (at [30]) .…
DPP v McRae
[2010] VSC 114 Para 7

…As Curtain J said in DPP v McRae [2010] VSC 114 (at [20]): Section 38 applies in circumstances where it may be anticipated that the witness will be unfavourable. It is not confined to a situation where a party calling a witness is confronted unexpectedly by evidence which is unfavourable or by a witness who unexp…
Radisich v Molina & Ors
[2009] FMCA 1121 Para 12

…v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen & Ors [2004] NSWSC 1298 (at [49]) and Lee v The Queen…
LEE v R
[2009] NSWCCA 259 Para 12

…(at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen & Ors [2004] NSWSC 1298 (at [49]) and Lee v The Queen [2009] NSWCCA 259 (at [30]) .…
Burrell v The Queen
[2008] HCA 34 Para 3

…A helpful exegesis of the rationale for the provision is also given by McClellan CJ at CL, with whom Sully and James JJ agreed, in Burrell v The Queen (2007) 190 A Crim R 148 (at 201-2; [232] to [235]). As his Honour said (at 202; [233]): ... on occasions, because of the forensic risks a material witness would not be called…
R (Cth) v Petroulias (No. 29)
[2007] NSWSC 1005 Para 7

…evidence. So much is apparent from the decision of the High Court in Adam’s case [ Adam v The Queen (2001) 207 CLR 96] and R v Petroulias (No 29) [[2007] NSWSC 1005].…
Hadgkiss v Construction, Forestry, Mining and Energy Union
[2006] FCA 941 Para 13

…While there is some possible difference, for example, in the decision of Graham J in Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560 (at 562; [9]), and in Klewer v Walton [2003] NSWCA 308 (at [20]) and R v Pantoja (NSWCCA, No CCA 60174/97, 5 November 1998, unreported), I am not convinced…
R v Shamouil
[2006] NSWCCA 112 Para 7

…vidence to be elicited by the cross-examination. That the evidence would be reliable or credible is, perhaps, not of importance: R v Shamouil [2006] NSWCCA 112 (at [60] to [64]). It seems to me that there is no basis for limiting the evidence or rejecting leave under this section. (d)Section 137. This section provid…
Regina v Ronen
[2004] NSWSC 1298 Para 12

…[14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen & Ors [2004] NSWSC 1298 (at [49]) and Lee v The Queen [2009] NSWCCA 259 (at [30]) .…
R v Taylor
[2003] NSWCCA 194 Para 12

…2); Cakovski (2002) 133 A Crim R 18 (at 22; [13]); R v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen &…
Klewer v Walton
[2003] NSWCA 308 Para 13

…e, in the decision of Graham J in Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560 (at 562; [9]), and in Klewer v Walton [2003] NSWCA 308 (at [20]) and R v Pantoja (NSWCCA, No CCA 60174/97, 5 November 1998, unreported), I am not convinced that these are not able to be made consistent wi…
R v Yates
[2002] NSWCCA 520 Para 7

…y unconnected with the issues in the case. For example, it is unlikely to lead the jury to adopt an illegitimate form of reasoning: R v Yates [2002] NSWCCA 520 (at [252]). Indeed, it seems to me that the cross-examination would be of assistance to the jury in determining whether to accept the evidence of the young w…
Adam v The Queen
[2001] HCA 57 Para 7

…unexpectedly appears not to be making a genuine attempt to give evidence. So much is apparent from the decision of the High Court in Adam’s case [ Adam v The Queen (2001) 207 CLR 96] and R v Petroulias (No 29) [[2007] NSWSC 1005].…
Tran v The Queen
[2000] FCA 1888 Para 11

…In Tran v The Queen (2000) 105 FCR 182, the Full Court of the Federal Court of Australia (Black CJ, Weinberg and Kenny JJ) said of the Crown opening (at 202; [130]): In the conduct of a trial, the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is inte…
R v Fowler
[2000] NSWCCA 142 Para 12

…ski (No 2) (1997) 93 A Crim R 420 (at 422); Cakovski (2002) 133 A Crim R 18 (at 22; [13]); R v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1…
R v Kneebone
[1999] NSWCCA 279 Para 15

…This is an approach somewhat supported by what Greg James J said in R v Kneebone (1999) 47 NSWLR 450 (at 461; [54]): Section 38 of the Evidence Act refers to the concept of the witness being “unfavourable”. In the context of a criminal case, care may have to be given to the question of what “unfavourable” to the Crown…
Colonial Mutual Life Assurance Society Ltd v Donnelly
[1998] FCA 364 Para 12

…, unreported). It has also been followed by the Full Court of the Federal Court of Australia in Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 (at 430). See also Velevski (No 2) (1997) 93 A Crim R 420 (at 422); Cakovski (2002) 133 A Crim R 18 (at 22; [13]); R v White (2003) 140 A Crim R 63 (…
Whitehorn v the Queen
[1983] HCA 42 Para 6

…ases been allegedly present when the complainant used the marijuana and also been present when she returned to the college. See Whitehorn v The Queen (1983) 152 CLR 657 (at 674).…
McLellan v Bowyer
[1961] HCA 49 Para 1

…tile. To do that, a court had to find affirmatively that the witness was deliberately withholding or lying about material evidence: McLellan v Bowyer (1961) 106 CLR 95 (at 101, 104).…
[1999] HCATRANS 599
[1999] HCATRANS 599 Para 13

…n by the High Court in dismissing the application for special leave to appeal in R v Pantoja is supportive of the wider approach: Pantoja v The Queen [1999] HCATrans 599. In that decision McHugh J expressed some views similar to those expressed by Adams J in R v Pantoja but considered that the terms of the section wer…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
11, 135, 137, 192, 192A, 38, 41, 55 9 mentions (from Para 7)
Crimes Act 1900 (ACT)
54 2 mentions (from Para 2)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
1 mention (from Para 3)