R v Spiteri

[2004] NSWCCA 321

Reported Decision: 61 NSWLR 369

New South Wales

Court of Criminal Appeal

CITATION:	R v Spiteri [2004] NSWCCA 321
HEARING DATE(S):	1 September 2004
JUDGMENT DATE:	20 September 2004
JUDGMENT OF:	Grove J at 1; Simpson J at 2; Shaw J at 54
DECISION:	Appeal against conviction dismissed
CATCHWORDS:	appeal against conviction - aggravated sexual assault - sexual intercourse without consent - prosecution duty of disclosure - cross-examination of appellant on credit - Evidence Act s104 - splitting the prosecution case - case in reply by the Crown where an accused person raises a new factual issue - Evidence Act s106
LEGISLATION CITED:	Crimes Act s405A Evidence Act 1995, s102, s104, s106
CASES CITED:	Grey v The Queen [2001] HCA 65; 75 ALJR 1706 Killick v The Queen (1981) CLR 565 Melvin and Dingle (UK) (20 December 1993) R v Brown (Winston) [1998] AC 367 R v Eric, Neil and Shane Heuston (1996) 90 A Crim R 213 R v Keane [1994] 2 All ER 478 R v Reardon [2004] NSWCCA 197 (unreported, 23 June 2004) Shaw v The Queen (1952) 85 CLR 365
PARTIES :	Crown - Respondent Mark Spiteri - Appellant
FILE NUMBER(S):	CCA 2004/1736
COUNSEL:	Crown - Ms D Woodburne Appellant - Ms L Flannery
SOLICITORS:	Crown - S Kavanagh Appellant - SE O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/41/0023
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

2004/1736
(60309/04)

GROVE J
SIMPSON J
SHAW J

Monday 20 September 2004

REGINA v Mark SPITERI

Judgment

1 GROVE J: I agree with Simpson J.

2 SIMPSON J: The appellant appeals against his conviction by a jury in the Bega District Court on 23 September 2003 following a trial which began on 18 September. He was convicted on one count of aggravated sexual assault and one of sexual intercourse without consent, both alleged to have been committed on 17 November 2002 at Moruya and to have involved the same complainant.

the Crown case

3 The grounds of appeal being relatively narrow, the case advanced by the Crown may be briefly stated. It was that, on the date alleged, the appellant and the complainant both attended a hotel in Moruya, NSW. The complainant had consumed some alcohol and was socialising with friends and continued to consume alcohol. At some stage during the evening the appellant and the complainant came into the same group and introduced themselves to one another, before moving on to other groups. When the hotel closed at midnight the complainant and others gathered outside and agreed to go to a party nearby. One of the group invited the appellant and three people (the appellant, the complainant and another female, a friend of the complainant’s) walked in the direction of the party. The second female was delayed, answering a telephone call; the appellant crossed the road to the outskirts of a golf course and then called to the complainant, asking her to help him locate a shoe that he said he had lost. In order to do so the complainant climbed through a fence; the appellant lunged at her, pushed her, causing her to fall, and then sat on her stomach, grabbed her hands and held them above her head, using his left hand, and told her that if she was going to act like a whore then he would so treat her. He removed her clothing. She struggled. He took a glass bottle from a plastic bag saying that he was going to “hurt her good now”; and inserted the large end of the bottle into her vagina. He was still holding her hands above her head, using his left hand. After manipulating the bottle, part-way in her vagina, for some time, he released her hands, loosened his own clothing, sat astride her body and raped her vaginally. He then rose, adjusted his clothing and walked away. The complainant immediately contacted her friends and recounted to them what had happened. She was taken to hospital and examined. She was described by one friend as hysterical.

the trial

4 Evidence to the above effect was given in the trial by the complainant and by two of her friends who had been present during the evening and to whom the complainant had complained immediately after the events. Medical evidence was given establishing injuries consistent with the complainant’s account, and identifying DNA in semen taken from her vagina with that of the appellant. Police evidence of investigation of the scene was that Strongbow cider bottles, two black shoes and female underwear were found in the general location. One of the bottles bore the appellant’s fingerprints.

5 The appellant gave oral evidence on 22 September 2003, the third day of the trial. He acknowledged that sexual intercourse between himself and the complainant had occurred at or near the golf course, and even that a bottle had been used. He claimed, however, that all sexual activity had been consensual. In short, his evidence confirmed that he had been at the hotel, had met the complainant, had purchased six bottles of Strongbow cider, had agreed to go to a party (he claimed, contrary to the Crown case, at the complainant’s invitation), and had, in company with a number of others, walked towards the party. The group fragmented until only the appellant, the complainant and her friend remained. He gave evidence that the complainant made explicit (and unusual) sexual advances to him and encouraged him to accompany her to the golf course to “have some fun”; and that, in the seclusion of the golf course, she had removed her jeans and had herself inserted first the neck, and then the base, of the bottle into her own vagina; and that he had assisted her in this. According to him the complainant then said “now fuck me.” They had consensual intercourse, after which the complainant dressed herself. She said that she lost her shoe, and he helped her, unsuccessfully, to look for it. They returned to the road, met the complainant’s friend, and walked a short distance when the complainant began to cry.

6 Significantly, the appellant claimed that he had, on 18 May 2002, been involved in a motorcycle accident, in which he had seriously injured his left arm, and that, in November 2002, he retained significant disability in that arm, as a consequence of which it would have been physically impossible for him to restrain the complainant in the way she had described in her evidence. He also gave evidence that, even as at the date of trial, he retained significant disability in his left arm. Medical records establishing injury to his arm on the date alleged were tendered.

7 The appellant was asked by his counsel to show the scarring on his left arm to the jury. In an unresponsive answer the appellant said:

“There’s just no movement there.” (T185)

and, in response to a further question about the extent of his movement, he said:

“I can just move my fingers like that.”

and that he could not move his wrist from side to side or in a circular way. This evidence, given in the present tense, was plainly directed to conveying to the jury that, even at the date of the trial, ten months after the date of the encounter with the complainant, the appellant was incapacitated in his left arm. It is also plain that it was intended that the jury would infer that, if he were so incapacitated in September 2003, then it was probable that he was at least equally incapacitated in November 2002.

8 In cross-examination (again framed in the present tense) he said that his left wrist was “very weak”, and:

“I’m limited, I can’t do, can’t lift things.”

He said that he could not put pressure on the left wrist and:

“It’s, it’s about fourteen, fifteen months since the accident now and I’m just sort of, just starting to get the physical back in the top part of my arm so, but nothing with the wrist.”

He said he could not do weight lifting, chin-ups or push-ups. He was then asked this question:

“So if I got someone in here from the Corrective Services people who said that a few days ago in the cells you were doing push-ups that person would be lying?”

His answer was:

“I’d say so.”

He was asked if he had in fact been doing push-ups in the cells to which he replied that he had been trying but that he did not think that he had been succeeding. He said that it would be a complete lie to assert that he had done forty push-ups.

9 As a consequence of the evidence given by the appellant concerning the asserted disability in his left arm, the Crown sought, and was permitted, to call a case in reply. The sole witness called in reply was Mark Stanley Duncan, an officer of the Department of Corrective Services. Mr Duncan’s evidence in chief was brief. It was that, on Tuesday 16 September 2003 (that is, six days before the appellant gave evidence) he (Mr Duncan) was on duty at the cells of the Batemans Bay Court where the appellant was in custody. At about 3.30 pm on that day he observed the appellant in his cell, doing push-ups. Mr Duncan described these as

“close grip push-ups as opposed to a wide grip push-up”.

10 Mr Duncan demonstrated the appellant’s hand position as he had observed it. This was described by the Crown Prosecutor for the transcript without dissent from counsel for the appellant as:

“... hands in front of himself and thumbs splayed and about what, 25 centimetres between the middle of the two hands.”

11 Batemans Bay cell complex is under 24 hour video surveillance. Tendered into evidence was a videotape taken in the cell occupied by the appellant on 16 September 2003. This showed the appellant performing exercises of the kind described by Mr Duncan. In cross-examination it emerged that the videotape shown was taken at about 5.00 pm on that day. Mr Duncan acknowledged that what was depicted on the videotape was not the incident he had observed at 3.30 pm. During the course of the appeal, counsel agreed that what could be seen on the 5.00 pm videotape accorded with what Mr Duncan had said he had observed at 3.30, that is, the appellant performing push-ups in his cell. (Thus, the jury had evidence of two occasions on one day when the appellant was able to, and did, perform push-ups.)

the appeal

12 One ground of appeal, in three parts, was pleaded. All parts concerned the evidence of Mr Duncan or the incident described by him. The ground of appeal was pleaded as follows:

“There was a miscarriage of justice as a result of:
1A. The failure of the Crown Prosecutor to disclose:
(i) the statement of Mark Stanley Duncan, and
(ii) the existence of a videotape of the appellant doing push-ups in his cell
prior to the close of the defence case.
1B. The failure of the Crown Prosecutor to seek leave prior to embarking on cross-examination of the appellant about matters of credit contrary to the requirement in s104 of the Evidence Act, and
1C. The prosecution splitting its case.”

It is convenient to treat each of the three particulars as separate grounds. In oral argument, a further matter involving s106 of the Evidence Act 1995 was raised. I will treat that as a fourth ground of appeal.

13 In order fully to explore the argument put on behalf of the appellant it is necessary to pay more attention to certain aspects of the evidence. The first such matter concerns the examination of the complainant and of Detective MacPherson. Trial counsel for the appellant pressed the complainant as to her description of the manner in which she alleged that the appellant had used his left hand to restrain her while using his right hand to remove her clothes. This occurred on the first day of the trial, 18 September 2003. At one point when the complainant said that she thought that it was the left hand with which he restrained her, he pressed her further, confirming that in her initial statement she had told the police officer that it was the left hand that he had used for this purpose. He then asked her whether the appellant had told her of having been involved in a motorcycle accident (which she denied); that he had received serious injuries to his arm, and that he had told her that his left arm was weak (both of which she denied). He asked if she had noticed that his left arm was weak to which she replied that it was very strong to her.

14 Detective Michael MacPherson gave evidence that he had been called in to investigate the complainant’s allegations on the evening of 17 November. Having regard to the limited nature of the grounds of appeal, it is unnecessary to canvas the bulk of the evidence given by Detective MacPherson. However, one aspect of the cross-examination needs to be noted. It was put to him that, by 27 November 2002, he had known that there had been raised on the appellant’s behalf a question about the alleged injury to his left arm. Detective MacPherson agreed that he knew that as at the date of giving evidence (22 September 2003) but could not recall when that had first come to his attention. Nor could he recall the circumstances in which he had become aware of the appellant’s assertion. This cross-examination was the last evidence given in the Crown case (Detective MacPherson having given evidence in chief, but not in cross-examination, on 19 September, and having been recalled for further evidence in chief and cross-examination on 22 September). Immediately after Detective MacPherson had retired from the witness box the appellant commenced his evidence.

15 On Friday 19 September Mr Duncan told Detective MacPherson of what he had seen in the cells on 16 September. He appears to have done this as a result of having heard the cross-examination of the complainant. Mr Duncan made a statement on Sunday 21 September setting out his observations. Neither the contents of the statement nor the existence of the video tape was disclosed to the appellant’s legal representatives until after the appellant had completed his evidence.

ground 1A: Crown non-disclosure

16 The first ground of appeal raises yet again the extent and nature of the duty which undoubtedly lies upon the Crown to disclose material evidence or information. It is important to note that the ground is confined to issues concerning the Crown obligation of disclosure; it does not concern the adducing of evidence. Those matters arise under the subsequent grounds of appeal.

the prosecution’s duty of disclosure

17 Although it cannot be doubted that the prosecution is under a duty to disclose to the defence relevant material in its possession, the precise scope of that duty cannot be so clearly defined. Perhaps the most succinct, and commonly adopted, statement of the obligation was that originally derived from a 1993 UK decision in a matter identified as Melvin and Dingle (20 December 1993) and adopted by the English Court of Appeal in R v Keane [1994] 2 All ER 478, which is in the following terms:

“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:
(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).”

This test was again adopted by the English Court of Appeal in R v Brown (Winston) [1998] AC 367. I take the second category to be intended to refer to a new issue that would not be apparent to the accused person from the evidence the prosecution proposes to use – that is, a new issue that becomes apparent by reason of the material whose disclosure is in question.

18 The issue of the prosecution’s duty of disclosure came before the High Court of Australia in Grey v The Queen [2001] HCA 65; 75 ALJR 1708, but in circumstances in which the Crown conceded that the undisclosed material there in question was of a kind which ought to have been disclosed; the High Court was thus concerned with the consequences of the admittedly erroneous non-disclosure, and not with defining the extent of the obligation.

19 More recently, this Court (in a bench of which I was a member) considered the extent of the Crown’s duty of disclosure in R v Reardon [2004] NSWCCA 197 (unreported, 23 June 2004). Hodgson JA extensively reviewed the principles stated in these and other English authorities and (at [54]), while declining to state a conclusion about whether all the views expressed in those authorities should be adopted by this Court, expressly adopted the test posited initially in Melvin and Dingle and endorsed in Keane and Brown.

20 It needs to be acknowledged that his Honour’s adoption of that test was, strictly, obiter. In a segment of the judgment with which Barr J and I agreed, his Honour had already held that this Court had no power to embark upon the process sought by that appellant (which was to reopen a perfected appeal). Further, because of the approaches we took to the question of substance, neither Barr J nor I expressly agreed with Hodgson JA’s proposed adoption of the Melvin and Dingle test. Accordingly, it is appropriate now to state, for myself, that I agree that that test correctly encapsulates, for NSW, the prosecution’s duty of disclosure.

21 Of the three categories identified as categories of material which ought to be disclosed the third can, for the purposes of the present case, be discarded from consideration. For the appellant to succeed in showing that the Crown was obliged to disclose the statement of Mr Duncan and the videotape, it is necessary that it establish that they fell into either the first or the second of the Melvin and Dingle categories. That is, that they were relevant, or possibly relevant, to an (existing and identified) issue in the case, or to raise, or possibly raise, a new issue whose existence would not be apparent from the evidence that the prosecution proposes to use.

22 As to the first, two issues present themselves as possibly relevant: (i) the credibility of the appellant; and (ii) the appellant’s ability (as at 17 November 2002) to use his left arm as the complainant asserted he had used it during the attack upon her.

23 In Brown it was held that the prosecution duty of disclosure did not extend to disclosing material relevant only to the credibility of defence (as distinct from prosecution) witnesses. Even less, in my view, does the duty extend to disclosing material relevant only to the credibility of the accused person himself or herself; and even less does it extend to obliging the Crown to disclose material that would deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false.

24 In Brown, Lord Hope of Craighead, with the concurrence of all other members of the House of Lords, said:

“The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him ... the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence .” (emphasis added)

25 The reference to material which might assist the defence has to be considered in the context of the trial under consideration. The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee. Here, the appellant declined to be interviewed by police and did not expressly reveal what his defence might be. That said, having regard to the DNA and fingerprint evidence, the Crown might reasonably have foreseen that, if the appellant were to persist in defending the charge, the only avenue of defence open to him was to claim that the activity was consensual. But that is not an answer to the question of what it was that it is now suggested the Crown ought reasonably to have foreseen. What it is now suggested the Crown ought to have foreseen was that the appellant would assert that he condition of his left arm in November 2002 rendered him physically incapable of restraining the complainant as she alleged he did, and, further, that he would seek to support that assertion by claiming that, as at the date of trial, that incapacity remained with him. Then, it is suggested, the Crown ought, in discharge of its duty of disclosure, have alerted the appellant to its knowledge of his capacity, in 16 September 2003, to do push-ups, in order to deflect him from making that false assertion.

26 It is worth stating the sequence of events. It was:

(i) on 18 September 2003 the complainant was cross-examined as to her knowledge and observation of the appellant’s capacity to use his left hand in the manner she alleged – that is, his capacity (or incapacity) as at the date of the alleged offence, 17 November 2002;
(ii) on 21 September 2003 Mr Duncan provided a statement as to his observation of the capacity of the appellant to use his left arm – that is, his capacity as at 16 September 2003;
(iii) on 22 September 2003 Detective MacPherson was cross-examined as to his knowledge of the appellant’s assertion of incapacity – that is, his asserted incapacity as at 17 November 2002;
(iv) on 22 September 2003 the appellant gave evidence of his asserted incapacity to use his left hand in the manner alleged by the complainant – that is, his asserted incapacity, not only as at 17 November 2002, but also as at 22 September 2003.

27 The evidence does not disclose when the Crown, through either Detective MacPherson or other police, or Director of Public Prosecutions officers, became aware that the appellant intended to raise an issue about his asserted incapacity to use his left arm in November 2002. What is clear is that it was only when the appellant gave evidence in the trial about his incapacity then, and added that he continued to be incapacitated in September 2003, that his capacity or incapacity as at that date became an issue. Although the appellant’s credibility, were he to give evidence, was always likely to be an issue and this was foreseeable to the prosecution, the specific issue as to his capacity to use his left hand at the time of or around the date of the trial only arose when he gave that evidence. Until he made that assertion in his evidence in chief and repeated it in cross-examination, the information and videotape provided by Mr Duncan were of, at best, the most marginal relevance to any issue in the case, even if the Crown had been aware of his assertion about incapacity in November 2002. Counsel who appeared for the appellant on appeal conceded that, had the Crown sought to call Mr Duncan in the prosecution case, objection would certainly (or almost certainly) have been taken on the ground of relevance. She stopped short, however, of conceding that the evidence would have been inadmissible. Had she made that concession, she would have undermined the third basis of the appeal.

28 There was no reason for the Crown to disclose the statement of Mr Duncan or the videotape until the appellant had given the evidence he gave of continuing incapacity. The only purpose of providing the statement or the videotape to the appellant prior to that evidence would have been to deter him from making a statement in evidence which the Crown had material to disprove. The Crown had no reason to anticipate that the appellant would embellish his evidence about his 2002 incapacity by asserting the same incapacity continuing to 2003. While it would not be proper for the Crown to create a trap for an accused person, there is no Crown obligation to deter an accused person from creating a trap for himself; nor need it anticipate that he will do so.

29 Neither the appellant’s capacity as at 16 September 2003, nor his credibility in relation to his capacity on 16 September 2003 was an issue in the case until the appellant had given the evidence he gave. Returning to the language of Melvin and Dingle, a sensible appraisal by the prosecution prior to that time would not have led to a conclusion that Mr Duncan’s information was relevant or possibly relevant to an issue in the case – whether that issue was defined as the appellant’s credibility generally, or his capacity in 2002 to use his left arm. Nor could the material fall into the second Melvin and Dingle category, raising, or possibly raising, a new issue whose existence was not apparent (to the appellant) from the evidence the prosecution proposed to use. Mr Duncan’s statement and the videotape were not capable of raising a new issue; they were capable only of clarifying the issue raised by the appellant. The question of the appellant’s capacity as at 16 September 2003 became an issue only on the basis of his own evidence and not otherwise.

30 In response to the appellant’s contentions, the Crown has made another compelling point. Just as, in Reardon (see [110]), the material which it was contended should have been available was in fact material about that applicant’s own conduct, material to which he plainly already had access, so, here, was the material about which complaint of non-disclosure is now made. The relevant information was information that the appellant had been able to do, and had done, push-ups in his cell on 16 September 2003. That contradicted his evidence of continuing incapacity on 22 September 2003. But the appellant himself (although, presumably, not his legal advisers) was well aware that he had been able to do, and had done, those push-ups. The issue was not a failure of the Crown to disclose the fact of his capacity, but the failure of the Crown to disclose its knowledge of that fact, and its possession of evidence to establish that fact. That is, properly analysed, what the appellant now complains of is that the Crown did not disclose the state of its knowledge in such a way as to prevent him from creating a trap for himself. I am quite satisfied that the Crown’s duty of disclosure does not go so far. I would reject ground 1A of the appeal.

ground 1B: cross-examination of the appellant on credit

31 Ground 1B is directed to the cross-examination of the appellant by the Crown prosecutor. It raises s104 of the Evidence Act 1995. That section relevantly provides:

“104 Further protections: cross-examination of accused

(1) This section applies only in a criminal proceeding and so applies in addition to section 103.
(2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant’s credibility, unless the court gives leave.” (emphasis added)

32 There follow some subsections modifying sub-s(2) but it is not necessary here to set out these provisions.

33 S104 appears in that Part of the Evidence Act (Part 3.7) which is concerned with evidence as to credibility. The key section is s102, which provides:

“102 The credibility rule
Evidence that is relevant only to a witness’s credibility is not admissible.”

There follow a number of provisions refining the bald proposition contained in s102. S104 is one such refinement.

34 It will be recognised, from the concluding words of s104(2), that the drafters of the Evidence Act envisaged that some departure from the general prohibition might, on occasions, be warranted. Sub-ss (3), (4), (5) and (6) expand upon the circumstances in which leave might (or should not) be given. The Crown prosecutor did not seek, and was accordingly not granted, leave to embark upon the cross-examination of the appellant in relation to his having been observed doing push-ups in the cell.

35 The complaint here is not that leave was wrongly given, but that it was not sought, and that the Crown prosecutor embarked upon a prohibited line of cross-examination without seeking or being granted leave. That depends upon the premise that the cross-examination was of a kind that required leave. The prohibition applies only where the subject matter of the cross-examination is relevant only to the defendant’s credibility. Where the subject matter of the cross-examination is relevant to the defendant’s credibility, but also relevant to some other issue, it is not prohibited by s104(2). (It may, of course, be excluded on some other basis but that is not here material.)

36 The preliminary question, therefore, is whether the subject matter of the cross-examination was relevant only to the appellant’s credibility. If it was not, and was relevant to some other issue in the trial, then it was not prohibited by s104, it did not require a grant of leave, and the ground of appeal falls away.

37 On one view (the view urged by counsel for the appellant) the evidence concerning the appellant’s 2003 capacity to perform, and his performance of, push-ups was relevant only to his assertion of incapacity as at that time. That is because, on the argument, his capacity or incapacity in 2003 was not relevant to his capacity or incapacity ten months earlier, in 2002. The evidence was too remote from the real fact in issue, which was the appellant’s capacity or incapacity in November 2002. If this analysis is correct, then Mr Duncan’s contradictory evidence was relevant only to the appellant’s credibility and was rendered inadmissible by s102 and s104 (unless leave were granted).

38 The argument deserves close attention, but must, in my view, ultimately be rejected. I have come to this conclusion because of the way in which the appellant himself presented the evidence of his asserted 2003 incapacity. He claimed that that incapacity arose from the May 2002 motor cycle accident which had caused incapacity which existed as at November 2002, and which continued to September 2003. The asserted 2003 incapacity was, essentially, the same as the asserted November 2002 incapacity. For that reason capacity or incapacity as at September 2003 was relevant to capacity or incapacity in November 2002. By his evidence the appellant tied his 2003 condition to his 2002 condition. The 2003 evidence was thus evidence relevant to a fact in issue.

39 It may, of course, also have been relevant to the appellant’s credibility, but since it was not relevant only to that issue, it was not rendered inadmissible by s102 or s104, and the Crown prosecutor did not require a grant of leave before embarking upon the cross-examination.

40 I would reject this ground of appeal.

ground 1C: splitting the prosecution case

41 In support of this ground of appeal the appellant relies upon the well-known principles restricting the circumstances in which the Crown is permitted to call a case in reply: Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565 and others. In written submissions counsel argued:

“In this case the cross-examination of the complainant, the cross-examination of Detective MacPherson and the fact that the appellant was wearing a wrist support throughout the trial meant that the prosecutor was well and truly on notice that the condition of the appellant’s wrist on 17 November 2002 was an issue and it ought reasonably to have foreseen that the condition of the appellant’s wrist at the time of the trial may have reflected upon that issue .” (emphasis added)

In those circumstances, counsel argued, the prosecution should not have been permitted to split its case and call evidence in reply.

42 In one sense this may be seen as a refinement of ground 1A. It stands or falls with ground 1A. The authorities recognise that, while rare, a case in reply by the Crown is permitted where an accused person raises a factual issue which the Crown cannot reasonably have been expected to foresee. In my opinion, particularly having regard to the information in its possession as to the appellant’s push-up capacity, the Crown could not reasonably have been expected to foresee, and to anticipate by contradictory evidence in chief, that the appellant would make the assertions that he did in his oral evidence. As counsel conceded, evidence tendered by the Crown in evidence in chief as to the appellant’s 2003 condition would have met with objection. It was only when the appellant went beyond giving evidence of his incapacity in November 2002 and maintained that that incapacity persisted until September 2003, that the evidence of Mr Duncan became relevant and admissible. It would not have been open to the Crown to have called Mr Duncan’s evidence until the appellant gave the evidence he did, expressly linking his 2003 condition with his 2002 condition.

43 Counsel for the appellant relied upon the decision of this Court in R v Eric, Neil and Shane Heuston (1996) 90 A Crim R 213, and in particular upon my own dissenting judgment in relation to one of three appellants. There, that appellant had served upon the Crown (at a time well outside that provided for by statute) three notices of alibi pursuant to s405A of the Crimes Act 1900. Shortly thereafter, and in the weeks before (and, in one case, during the course of) the trial, the Crown amassed a series of statements rebutting the facts asserted in the alibi notices. The Crown did not disclose these statements until after it had closed its case, and two of the appellants (including the appellant now relevant) had made unsworn statements. The Crown then called the makers of those statements in a case in reply. The basis of the appeal in relation to each appellant was a discretion exercised by the trial judge in permitting the Crown to call evidence in reply following the defence cases; and whether his doing so gave rise to a miscarriage of justice. It is of some significance that all members of the bench (Gleeson CJ, James J and myself) agreed that the rebuttal statements in the Crown’s possession before the end of the Crown case should have been disclosed before the Crown case was closed. The majority (Gleeson CJ and James J) held, nevertheless, that the failure to disclose those statements did not, in the circumstances of that case, give rise to a miscarriage of justice. It is implicit, or it follows, that their Honours were also of the view that calling the evidence of those witnesses in reply, as distinct from in chief, after the tender of the alibi notice, also did not give rise to a miscarriage of justice. It was in this respect that I dissented. I took the view that the time for production of all material in its possession by them was before the close of the Crown case.

44 A number of observations may be made about Heuston. Firstly, since my judgment was a dissenting one, it cannot be taken to be authority for any proposition. Secondly, the disagreement in the Court was as to the application, in the particular case, of principles which were not in dispute. Thirdly, neither of the judgments reveals the drawing of a clear distinction between the duty of disclosure, and the timing of disclosure the Crown is obliged to make, and the calling of a Crown case in reply. As is clear from the authorities I have cited in my consideration of ground 1A of this appeal, issues concerning the Crown duty of disclosure have been the subject of increasing attention in recent times. Finally, the issues in Heuston were affected by the fact that the evidence in question related to alibis of which evidence was given on behalf of those appellants, and such evidence is subject to the particular provisions of s405A of the Crimes Act: in particular, by reason of those provisions, the Crown ought to be on notice of evidence which it may be able to rebut. In the case of the first Heuston appellant, while an alibi notice was given somewhat earlier than that of the second appellant, one of the alibi witnesses sought to support that defence by reference to a document, which, the Crown was able to show, was a forgery. But that document was not mentioned in the alibi notice, and was produced for the first time during the course of the defence case. All members of the court agreed that the Crown did not have any obligation to inform the defence of the progress of investigations concerning that document; and that there was no error on the part of the trial judge in permitting the Crown to establish its inauthenticity by evidence in reply.

45 In my opinion, neither the majority nor the minority decision in Heuston assists the present appellant.

46 I would reject ground 1C.

ground 1D: Evidence Act , s106

47 The final matter raised on behalf of the appellant was never formulated as a ground of appeal. It amounts, as I understand it, to this. In ruling that the Crown could call the Duncan and videotape evidence in a case in reply, the trial judge held that the evidence was admissible under s106(e) of the Evidence Act. S106 is in the following terms:

“ 106 Exception: rebutting denials by other evidence

The credibility rule does not apply to evidence that tends to prove that a witness:


(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence against the law of a foreign country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her evidence relates, or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth,

if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence.”

48 As with s104, s106 applies only to evidence that is relevant only because it goes to credibility of a witness. For the reasons given in relation to ground 1B, I am of the view that the evidence in question was relevant to a fact in issue and therefore does not come within Part 3.7 of the Evidence Act. However, since it raises serious questions concerning the construction of s106, it is appropriate briefly to outline (without finally resolving) the argument that was put.

49 A precondition of admissibility under s106 is that the substance of the evidence has been put to the witness whose credibility is in question, and has been denied: there is here no issue that these preconditions were met. The section then permits evidence in rebuttal to be adduced otherwise than from that witness.

50 On a literal construction of s106(e), the sub-paragraph would permit evidence to be given tending to prove that a witness had knowingly or recklessly made a false representation while under a legal obligation to tell the truth, even where that false representation was relevant only to the witness’s credibility. That construction represents a significant departure from what used to be called “the finality rule”, concerning credibility evidence – that is, that a cross-examiner is bound by answers given as to credit by a witness, and may not call evidence to rebut those answers. Doubts about such a conclusion have been expressed: see, for example, Odgers: Uniform Evidence Law, Thomson Law Book Company, 6th edition, 2004, para1.3.8220. In support of his expressed doubts, the author has suggested that, if that were the correct interpretation, paragraphs (a) – (d) would be unnecessary. An echo of that reasoning is to be found in Anderson, Hunter and Williams: The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts, LexisNexis Butterworths, Australia 2002, para 106.35.

51 I have concluded that, since the argument entails consideration of a significant question of construction, and one which (having regard to my views as to the relevance of the evidence to a fact in issue) it is not necessary to decide, the better course is, having noted the argument, to reserve it for another day.

52 For the reasons given above, I would reject this ground of appeal.

53 It follows that I would dismiss the appeal against conviction.

54 SHAW J: I agree with Simpson J.

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Last Modified: 10/20/2004