R v Warwick (No.75)

[2019] NSWSC 1435

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.75) [2019] NSWSC 1435
Hearing dates:	21 October 2019
Date of orders:	21 October 2019
Decision date:	21 October 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Subject to any further application which may be made in respect of the witnesses named in paragraphs 1(a), (b), and (c), the balance of orders 1 and 2 of the Notice of Motion dated 21 October 2019 are dismissed
Catchwords:	CRIMINAL LAW – Evidence – Witnesses – Application to the court to recall a witness - Power of the Court to order the Crown to call witnesses – Principles for recalling witnesses in The Queen v Apostilides – Court is not required to compel Crown to call witnesses - Court is not required to compel Crown to give reasons – Not “exceptional circumstances   requiring court to order calling of witnesses
Legislation Cited:	Not Applicable
Cases Cited:	The Queen v Apostilides [1984] HCA 38; 154 CLR 563 R v Warwick (No.53) [2018] NSWSC 1714
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) I Benson (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co
File Number(s):	2015/222068
Publication restriction:	Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236. Revoked by direction of Garling J on 21.8.2020.

EX TEMPORE Judgment (T.7253)

1. By Notice of Motion filed today, 21 October 2019, the Accused has sought orders that four identified witnesses who have previously given evidence in this trial be recalled for further cross-examination. As well, the Accused has sought orders that in respect of 12 other witnesses, that the Court order the Crown to recall those witnesses, or else take the steps described in The Queen v Apostilides [1984] HCA 38; 154 CLR 563 as set out in [20] of R v Warwick (No.53) [2018] NSWSC 1714.

2. Two other orders are sought, orders 3 and 4, dealing with the question of the future progress of the trial. These orders have not been pressed today and are not the subject of this judgment.

3. In the course of submissions dealing with the four witnesses to be recalled, the lawyer for the Accused invited the Court to put to one side the application in respect of three of those witnesses, indicating that he wished to obtain further evidence in support of his application. This approach was not opposed by the Crown. Accordingly, the application by the Accused to have Ms Anita Donovan, Ms Sylvia Stroh and Mr Edwin Archbold recalled to give evidence can be put to one side and are not determined by this judgment.

Application to Recall a Witness

4. The Accused pressed his application in respect of the recall of a witness, Mr Harry Cormack. Mr Cormack previously gave evidence on 31 July 2018 and 1 August 2018. At the time of the Events giving rise to the charges on the indictment, Mr Cormack was an employed solicitor of the firm which was acting for Ms Blanchard, the former wife of the Accused, during the proceedings between the Accused and Ms Blanchard in the Family Court.

5. In particular, Mr Cormack gave evidence-in-chief that after a particular interaction at the Family Court at Parramatta, in the course of his appearing for Ms Blanchard, he became concerned about the behaviour of the Accused and decided that he would drive to a nearby public telephone box to make a phone call to his office to tell them that an incident had occurred which had caused him concern, and to have them make a record of that incident.

6. Mr Cormack gave evidence-in-chief that he accessed a public phone and that whilst he was using it, he observed the Accused driving a particular car along the road past the telephone box and that the Accused, whilst doing so, gesticulated to him in what Mr Cormack said he considered to be a threatening manner. Mr Cormack was asked by the Crown Prosecutor to mark an--

ACCUSED (interrupting): “Okay, [holding up a note], I didn't own that car then”.

--aerial photo which was admitted as Exh 25 so as to indicate the location of the public telephone box. He did so. The location which Mr Cormack indicated was at, or near, the intersection of George Street and Charles Street in Parramatta.

7. Mr Cormack was also asked in chief about an interview which he gave to police on 15 May 1985, recorded in a running sheet prepared by a detective, Mr Inkster of that date, and which has since been tendered in evidence and marked as Exh 457.

Submissions

8. This application is made on the basis of enquiries recently made on behalf of the Accused which are said to cast doubt on the accuracy of the account of Mr Cormack with respect to whether there was any public phone box located in the vicinity of George and Charles Streets in Parramatta. The effect of those enquiries, so it is said, suggests that the nearest public telephone box to that intersection is in the order of 500 to 600 metres away.

9. It was also submitted that it would be appropriate to permit cross-examination of Mr Cormack about discrepancies between his evidence before the Court and the written version of events contained in Exh 457.

10. The Crown accepts that at least whilst evidence in its case is still being presented, the Court has the power to order it to recall any witness who has given evidence in the trial so far. The Crown submits that such power is a discretionary one, and that the Court would not make the order automatically, merely upon request.

11. The Crown draws attention to the fact that the issues now sought to be agitated were the subject of cross-examination of Mr Cormack and thoroughly dealt with. Further, the Crown submits that the evidence which is now sought to be put to Mr Cormack would be able to be led by the Accused in his case, subject to that evidence being led in proper and admissible form.

12. The Crown accepts that the accuracy of Mr Cormack's recall of the events surrounding what occurred after the Family Court hearing, including his making of a phone call from a public phone box, together with what Mr Cormack says that he observed with respect to the Accused and his conduct at that time, was put in issue during the cross-examination of Mr Cormack. The Crown also accepts that, these matters having been put in issue, it cannot object to any evidence being called in the case for the Accused which touches upon these matters of fact. The Crown also accepts that the Accused cannot be criticised for not formulating more precise questions to Mr Cormack in the course of the cross-examination.

13. The Accused submits that the material now in its possession, which has been briefly described at [8], impacts upon the accuracy of Mr Cormack's evidence and whether or not the Court should accept, as a matter of fact, that the events as described by Mr Cormack actually occurred.

Discernment: Mr Cormack

14. My conclusion, from a re-reading of the transcript of Mr Cormack's evidence and my recall of it, as it was given, is that he was thoroughly cross-examined, and in some detail, about the matters which would be covered by the evidence which is now sought to be further addressed. That cross‑examination was conducted, as it seems to me, on the basis of clear knowledge in the cross-examiner about the particular phone box in question. So, for example, at T.924, lines 32 through to 47, specific questions were put about the design and construction of the phone box in question, and it is clear from what followed in subsequent pages, that Mr Cormack's account of what he observed, and could observe, from that phone box, was being challenged.

15. As well, the inconsistency between his evidence and what was recorded by Mr Inkster in Exh 457, was also the subject of cross-examination. An error in Mr Cormack's evidence said to arise from that inconsistency was put directly to him.

16. In exercising this discretion, I take into account: the nature and extent of the cross-examination of Mr Cormack in July and August 2018, the fact that the Crown accepts that the evidence which it is proposed to rely upon to challenge the accuracy of Mr Cormack's account can be led in admissible form in the case for the Accused and the stage that the trial has reached, together with the absence of any indication of prejudice to the case for the Accused if Mr Cormack is not subject to further cross-examination.

17. It seems to me, taking those matters into account, that it is unnecessary for me to require the recall of Mr Cormack to enable the accuracy of his evidence to be fully ventilated. If the Accused wishes to adduce any evidence directed towards the determination of the question of the accuracy of Mr Cormack’s evidence, of the kind outlined in the affidavit of Ms Ramsay sworn 21 October 2019, then he is well able to do so.

18. I am not prepared to exercise my discretion to require the Crown to recall Mr Cormack.

Further Orders in the Notice of Motion

19. The second part of the Motion is the application by the Accused for 12 further witnesses to be called.

20. One of those witnesses, Mr Byrne, is a person in respect of whom the Crown is willing to call as a witness, subject only to his whereabouts being confirmed and his availability to give evidence being identified. There is no need to further consider the application in respect of Mr Byrne.

21. Another of those witnesses is a Mr Reginald Shatford. I am informed by the Crown, from the Bar table, that Mr Shatford is dead, and the Crown is therefore unable to call him as a witness. Any issue with respect to him can accordingly, be put to one side.

22. As to the balance of the witnesses, the subject of this part of the Notice of Motion, the Crown opposes any order being made ordering or otherwise requiring the Crown to call the individuals as witnesses.

23. In R v Warwick (No.53) [2018] NSWSC 1714, the Accused sought an order prohibiting the Crown from calling a witness. For the reasons which I there gave, I refused to make that order. In the course of that judgment, however, I dealt with the question of whether the Court had, or did not have, the power to make an order prohibiting the Crown from calling a witness to give evidence. I also considered the authorities relating to the question of what the Court’s power was to order the Crown to call a witness. I set out extensively, at [18] to [23], the authorities touching upon the making of an order by a trial Judge obliging the Crown to call a witness or, alternatively, the Court itself calling a witness. For the ease of reference, I set out now what I there said:

“18   The authorities to which I will now turn make it plain that a criminal trial is an adversarial proceeding in which the parties are the Crown and the Accused. It is for the parties to decide the grounds upon which the issues will be contested. The evidence which either of the Crown or the Accused calls and what questions are asked are directed to the proof of all contested issues. The evidence of any witness must be relevant and admissible, in accordance with the Evidence Act 1995. These are matters in which the Court or the presiding Judge has no role to play.

19   In Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at p.517 Barwick CJ said:

‘It is a trial, not an inquisition: a trial in which the protagonists are the Crown, on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not.”

20   In The Queen v Apostolides [1984] HCA 38; (1984) 154 CLR 563, the High Court of Australia in a unanimous judgment identified the following propositions as being applicable to the conduct of criminal trials in Australia. At p.575 the High Court said:

‘We have come to the conclusion that the following general propositions are 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....

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.’

21   The High Court in that decision at p.576 cited with approval the earlier judgment of Dawson J in Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657. At p.682, Dawson J said:

‘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 mantel 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 [(1974) 131 CLR 116 at 122], 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.’

22   At p.684, his Honour expressed the conclusion that, in the trial under appeal, it ‘formed no part of the trial judge's functions to direct the prosecution's choice of witnesses.’

23   In my view, there is no difference in legal principle between directing the Crown to call a witness and directing the Crown not to call a witness. Either of those two alternatives are the same in effect because they involve the interference by a trial judge in the undoubted discretion residing in the prosecution to choose the witnesses it will call and the evidence which it will lead.”

24. The Motion before the Court also sought that the Court take the steps set out in Apostilides, paragraphs 2 to 5 inclusive, which may be found in [20] of the extract set out above.

25. In a criminal trial, the first step is that the trial Judge may, but is not obliged to, question a prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person as a witness. Although the trial Judge may question the prosecutor, the trial judge is not called upon to adjudicate the sufficiency of those reasons.

26. In considering the application of this step in this case, I should note that the decision of the High Court in Apostilides referred to a trial which was being conducted by a Judge with a jury, whereas, this trial is being conducted by a judge alone. At the least, caution has to be exercised in a judge alone trial, in the taking of procedural steps so as to keep to a minimum any matter which a trial Judge sitting alone may hear in the course of dealing with a procedural application which may impact upon the mind of the fact-finding tribunal.

27. Of course, a trial Judge sitting alone is required to put out of their mind, anything which has been said to them in the course of adjudicating on contested procedural applications in the trial. That is because such material may not become evidence in the trial. There is no doubt that when considering my verdicts, I am to only take into account evidence which is admissible, and has been admitted in the course of the trial.

28. Nevertheless, in considering what the High Court has said in Apostilides, I am of the view that since I am not going to be called upon to adjudicate the sufficiency of the prosecutor's reasons and in this case, where I am also the fact-finding tribunal, it would not be appropriate for me to question the prosecutor about their reasons not to call the requested witnesses. Accordingly, when the prosecutor declined to call those witnesses, I decided that I would not question the prosecutor at length about that decision.

29. The issue of whether, at the close of the Crown case, I ought invite the prosecutor to reconsider any decision which he has made with respect to the calling of these witnesses has not yet arisen. I note that even at that stage, a judge cannot direct the prosecutor to call a particular witness.

30. I also observe that, when considering the directions to be recorded as part of the issues in this case, it is open to me to make such comment as may be appropriate with respect to the effect of the failure of the prosecutor to call a particular witness. Again, the occasion for that has not yet arisen and that can be put to one side.

31. Finally, Apostilides notes that the trial Judge should not, except in the most exceptional circumstances, call a person to give evidence.

32. The witnesses the Accused seeks to be called by the Crown can readily fall into several categories. There are five witnesses who might be regarded as expert witnesses from whom reports either have been, or can be, obtained by or on behalf of the Accused. These witnesses retained by the Accused can be called by him to give evidence. Another group of witnesses include those whose evidence might be regarded as being evidence of historic fact, but approaching evidence of an expert kind. Those witnesses are also available to be called by the Accused. Their evidence would reflect on historic fact. The evidence forms no part of the unfolding narrative at the time of the offences upon which the Accused has been indicted. I see no reason at all for regarding the circumstances surrounding either of these groups of witnesses as exceptional such that the Court would call them to give evidence.

33. The balance of the witnesses in respect of whom an order is sought may be able to give relevant evidence in the sense that they seem to be people involved in one or another of the Events as they unfolded and which have been touched upon in other evidence in the trial.

34. The Accused submits that it is anticipated that these witnesses may be able to give some relevant evidence touching on various matters of fact before the Court. As I understand the position, there is no statement in existence from any of these witnesses, taken either by the police or any officer or solicitor of the Director of Public Prosecutions Office or, even, by the solicitor for the Accused. The evidence of the solicitor for the Accused on this application, going to the relevance of any evidence which the witnesses may give, is based, at least in respect of two of the witnesses, upon an assumption arising from what he understands they may say if called to give evidence. That seems to me to fall far short of a statement of their admissible evidence, which can be given.

24. As to another three of the suggested witnesses - Mr Muhn, Mr Hohnen and Mr Bryne - there is no material indicating what evidence, if any, they might give if they were to be called.

25. The judgment in Apostilides does not define what would constitute "most exceptional circumstances". However, it seems that the phrase refers to a very limited window for the exercise by a trial Judge of the power to call a person to give evidence. I have not been persuaded that the circumstances surrounding each of the witnesses named in order 2(a) through to 2(e) inclusive are, in any way, of a kind that could be described as "exceptional" or "most exceptional".

26. It is a matter for the prosecutor, whether he chooses to call those witnesses. In making that decision, no doubt the prosecutor is well aware, and the Court should take it that he is well aware, of his professional obligations as a prosecutor. How those witnesses may fit into the unfolding of all of the facts surrounding the offences with which the Accused is charged is not at all clear. There may be consequences for the prosecution case of not calling those witnesses, but that is a matter entrusted to the prosecutor about which to make a judgment as required by law. It is not for the trial Judge to adjudicate the sufficiency of the reasons which the prosecutor has.

27. The issue of the calling of all of the witnesses nominated in paragraph 2 of the Notice of Motion has been well-ventilated. The prosecution has had adequate time to consider what it proposes to do. It has reached a considered position that it will not call those witnesses. I am not satisfied that the circumstances are such as to fall within the description "most exceptional circumstances" such that I myself ought call one or more of those witnesses to give evidence.

Conclusion

39. In those circumstances, I am not prepared to uphold the order sought in paragraph 2 of the Notice of Motion, and it will be dismissed. The consequence being, subject to any further application which may be made in respect of the witnesses named in paragraphs 1(a), (b), and (c), the balance of orders 1 and 2 of the Notice of Motion dated 21 October 2019 are dismissed.

Orders

40. I make the following order:

1. Subject to any further application which may be made in respect of the witnesses named in paragraphs 1(a), (b), and (c), the balance of orders 1 and 2 of the Notice of Motion dated 21 October 2019 are dismissed

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Amendments

24 August 2020 - Suppression order revoked by direction of Garling J on 20.8.2020.

Decision last updated: 24 August 2020