R v Smart (Ruling no 4)
[2008] VSC 89
•1 April 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1533 of 2007
| THE QUEEN |
| v |
| KEITH HERBERT SMART |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2008 | |
DATE OF RULING: | 1 April 2008 | |
CASE MAY BE CITED AS: | R v Smart (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 89 | |
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CRIMINAL LAW – Evidence – Young child not called as witness – Duty of prosecution concerning witnesses – Power of judge to call witness of own volition – Most exceptional circumstances not present.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Galbally & O’Bryan |
HIS HONOUR:
Keith Herbert Smart is charged with the murder of Katie Lee Tanner on 14 October 2006 at Cranbourne North.
Katie Lee Tanner maintained a relationship for a period of time with the son of the accused, David Smart. That relationship produced one child, Jayden Smart, who was born on 30 May 2004 and is therefore presently under four years of age.
On 26 March 2008, which was the eleventh day of the trial, I was informed by Mr Toohey of counsel for the accused, that information had come to hand via the learned Crown prosecutor indicating that a child who is now four years of age had made possible observations and that that information might be relevant to the issues in this case.
It was proposed by Mr Toohey that the child, who turned out to be Jayden Smart, be interviewed by those specialist in such areas, meaning specialist in interviewing young children often in connection with allegations of sexual offences, and that a “VATE” tape be made of that interview. The purpose was to enable the parties to consider such information as the child was able to give and decide what course should be followed.
With the co-operation of all concerned, that was arranged and at 11.47 am on 26 March 2008 Jayden Smart was interviewed by members of the police force and was invited to describe something that he apparently knew had occurred and had possibly witnessed concerning his father, David Smart, and his mother, Katie Lee Tanner.
I pause at this stage to observe that Jayden Smart, having been born in May 2004, would have been aged 2 years and 5 months in October 2006 if it be assumed that any incident he witnessed bore any relevance to this case. If what he claims to have seen happened at some other time then it is not relevant to this trial.
At all events, a video tape was obtained then played to me in court in the presence of the parties. In that interview, Jayden Smart was asked by a police officer to describe what he had seen concerning his father and his mother. An attempt was made to establish whether he understood the importance of telling the truth or what a lie was but to no avail. Understandably, during the interview or the portion of it that I saw, the child was significantly distracted by his surroundings.
Ultimately, however, he said that his father had hurt his mother with a hammer which he described as a black hammer. He did repeat that suggestion a number of times and suggested that other people were present including “Pop” and, as I heard it, “Granddad”. He also gave a description of chasing “Dad”. He said that, “’Pop’ didn’t hurt Katie but that ‘Dad’ did” and he used the words “bang, bang” several times.
Whatever this child was describing was not located in time or place and there was no surrounding detail.
The learned Crown prosecutor has indicated that she does not propose to call this child as a witness in the case. She has formed the view that whatever the child could say would not be reliable and, frankly, it is difficult to quibble with that conclusion.
The evidence demonstrates that there has been significant hostility between the Tanner family and the Smart family over the custody of this child. The hostility has, from time to time, resulted in mutual intervention orders as between Katie Lee Tanner and various members of the Smart family including David Smart, the father of the child, his new partner Sandra Whitlock, who is now Sandra Smart, and the estranged wife of the accused, Jeanette Smart. In addition, there was an issue after Katie Lee Tanner’s disappearance as to whether the child Jayden should live with Katie Lee Tanner’s father and his family or remain with David Smart and his new wife, Sandra Smart.
David Smart, the father of Jayden, would appear to have custody of the child at the present time.
A number of issues arose in relation to this matter concerning whether or not the child was competent to give evidence and under what provisions of the Evidence Act1958 (Vic) that might occur. However, at present at least, those matters do not need to be resolved because the learned Crown prosecutor, Ms Cannon, has indicated that she is not willing to call the child as part of the Crown case.
Mr Toohey submits that in the circumstances I should consider calling the witness myself pursuant one of the six principles stated in R v Apostilides.[1] The principles in that case are well-known and often quoted in the context of issues about whether or not prosecutors must call particular relevant witnesses and the consequences of not doing so. In terms, the High Court set out those propositions out as follows:
[1](1984) 154 CLR 563.
1.The Crown prosecutor alone bears 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.[2]
[2]Ibid at 575.
The Court went on in its judgment to note that a refusal by the Crown to call a witness will be justified only by reference to the overriding interests of justice. In the Court’s opinion, unreliability of the evidence will only be sufficient when there are identifiable circumstances which clearly establish it and suspicion by the prosecutor will not be enough.
The only question I have to decide at the moment as a result of the submissions put on behalf of the accused is whether or not I should call the child as a witness myself. I have no intention of doing so and consider that the situation does not warrant such a course being pursued.
As Osborn J noted in DPP v Douglas Victor Jensen,[3] a decision that a trial judge call a witness him or herself may or may not be able to be properly made prior to the completion of the Crown case. In my view, the time for this final decision is after the close of the Crown case, although I had expressed a provisional view to Mr Toohey mainly for the purpose of giving him a chance to consider my views and respond to them if he wishes.
[3][2007] VSC 77.
I have therefore waited until the Crown case is closed before announcing this decision. I am not satisfied that “most exceptional circumstances” have arisen which would justify such a course. My clear impression from watching the bulk of the video tape is that the child can do no more than make an allegation which is effectively unable to be scrutinised and unable to be tested. The video tape demonstrates the difficulty involved in extracting detail from the child beyond the phrase repeated several times that his father hurt his mother with a hammer.
In Whitehorn v R,[4] Dawson J made the following observations on this topic, particularly dealing with the risks and consequences of a trial judge being other than an impartial trial participant who stands back from the contest whilst supervising it and ensuring compliance with the relevant procedural and substantive legal principles:
A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party’s case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel. He is not equipped to do so, particularly in making a decision whether a witness should be called. As was pointed out in Richardson v. The Queen, he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision. If he calls a witness himself he will almost always have to do so in the dark, not knowing with any certainty what the witness is going to say or whether he can be relied upon. Cf. R. v. Collins. If the witness is unreliable (and if neither party has seen fit to call him, that is more likely than not), the fact that he is called by the judge may give his evidence an undesirable aspect of objectivity. There can be no assurance that his credit will be tested by either side but if it is, the judge has no means whereby he can ensure that any necessary steps to re‑establish the witness’s credit are taken. Because the judge does not know what a witness called by him may say, he may by calling him necessitate the calling of further evidence so that the trial takes a turn which was not intended and which further involves the judge in a function not appropriately his.[5]
[4](1983) 152 CLR 657.
[5]Ibid at 682-3.
There are occasions in criminal trials where, upon hearing that a prosecutor does not propose to call a particular witness that the accused wants to be called as part of the Crown case, a trial judge may express disquiet at such a course being followed. Apostolides articulates how that disquiet may be ventilated. In my experience, where a trial judge expresses concern at a witness not being called that will often result in a reconsideration by the prosecutor even if it results in the witness being called into the witness box, identified, and then left to be cross examined by the accused’s counsel. That has happened in relation to one witness in this trial already.
However, in this particular instance, I do not express such disquiet and I can fully understand why Ms Cannon declines to call the four-year-old child as part of the Crown case. The child’s evidence has no grounding in time, context or detail and is therefore totally unreliable. Given the age of the child, one would not expect anything else. From what I have seen, the child shows no upset or traumatic consequence from what he says he saw. There is a realistic probability that the child’s recollection is the result of suggestion or imagination or something else not reflecting reality. In addition, the child has been living in dysfunctional circumstances for his entire life with incidents of family conflict and violence occurring, putting aside the particular allegations made in this trial.
For the foregoing reasons, I refuse the application that I call the child Jayden Smart of my own motion.
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