R v Watt & Austin

[1994] QCA 154

IN THE COURT OF APPEAL [1994] QCA 154

SUPREME COURT OF QUEENSLAND

C.A. No. 431 of 1993 C.A. No. 430 of 1993

Brisbane
[R v. Watt]

[R v. Austin]

BeforePincus J.A.
Byrne J.

Kiefel J.

T H E Q U E E N

v.

CRAIG ANTHONY WATT and
GRANT JAMES AUSTIN

(Appellants)

Pincus JA
Byrne J

Kiefel J

Judgment delivered 17.05.1994

Separate reasons for judgment delivered by Pincus JA, Byrne J and Kiefel J. All Judges concurring as to the orders made.

APPEALS AGAINST CONVICTION DISMISSED.

CATCHWORDS:
Appeal against conviction - whether obligation for prosecution to call certain witnesses -consideration of

p rinciples - whether miscarriage of justice occurred.

Richardson v. R (1974) 131 C.L.R. 116, 119
Whitehorn v. R (1983) 152 C.L.R. 657, 663

R v. Apostilides (1984) 154 C.L.R. 563, 575

R	v. Bellino (C.A. 2/93 Unreported 12.10.93)
COUNSEL:	Mr A.P.J. Collins for the Appellant Mr P. Callaghan for the Respondent

SOLICITORS: Messrs Grays for the Appellant

Director of Prosecutions for the Crown

HEARING DATE: 13 April 1994

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17/05/1994

I have read the reasons of Kiefel J and agree with her Honour's conclusions.

Although a criminal trial involves an adversarial process, it is one in which some of the rules of the contest are so framed as to favour one side, the defence; in that sense, the antagonists do not compete on an equal footing.

The practice as to calling witnesses is an important example of this policy. The defence is free to call or not to call witnesses as it pleases, having no obligation to place the whole, or indeed any, picture before the Court. In a practical sense, the prosecution is, prima facie, obliged to call relevant witnesses, whether or not they favour its case. This is so in a practical sense because, although the judge will not direct the prosecution to call a witness, a mistaken failure to do so may vitiate a conviction; further, it may do so on the ground that the prosecutor is held to have acted unfairly or to have been guilty of misconduct - unpleasant possibilities which encourage prosecutors, when in doubt, to call a witness rather than not do so. The prosecutor's obligation to call relevant witnesses extends to calling those whose evidence does not favour the prosecution case, but is a prima facie obligation only because, in rather vaguely defined circumstances (see Apostilides (1984) 154 C.L.R 563 at 576), it is permissible not to call a relevant witness.

The appellant's difficulty in the present case is that the two witnesses whose not being called was ultimately relied on - Mr & Mrs Young - were not shown to be likely to have sufficient knowledge of the events in issue to enable one to characterise the prosecutor's decision not to call them as unfair, let alone as misconduct: Whitehorn (1983) 153 C.L.R. 657 at 669; nor does it appear that the absence of those two witnesses led to a miscarriage of justice, or made the convictions unsafe and unsatisfactory.

I agree that the appeals should be dismissed.

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 17/05/1994

The essential facts are recited by Kiefel J. Her Honour's reasons disclose that such recollections as Mr and Mrs Young may have had of incidents in the affray were not adduced in evidence because both the prosecution and the defence made that same choice. There is no suggestion that the defence lacked the opportunity or the resources to obtain such statements as were wished from Mr and Mrs Young and then to have those persons brought to Court to testify. Yet it is said that the convictions involved a miscarriage of justice because the prosecutor's decision not to call them deprived the defence of the advantage of cross-examination.

It was not shown how any evidence Mr or Mrs Young could have given might possibly have emerged differently if they had been cross-examined, rather than examined, by defence counsel. This omission is not really surprising as so little is known about what they observed, and such things as were said at the trial about Mr and Mrs Young tend to indicate that their evidence would not have shed light on the central issue: viz. whether Mr Seiler told the truth in describing the initial attack.

It was also conceded, appropriately enough, that there is no basis for supposing that the outcome of the trial might by any possibility have been different if Mr Young or his wife had testified.

In short, there is nothing in the material before us to suggest that the denial of cross-examination resulted in any detriment to the appellants, still less that it involved a miscarriage of justice.

I would accordingly dismiss the appeals.

REASONS FOR JUDGMENT - KIEFEL J.

Judgment delivered 17/05/1994

The appellants were convicted on 26th October 1993 of assault occasioning bodily harm to one Seiler. The complainant Mr Seiler was the manager of a McDonald's Family Restaurant at Loganholme which the appellants attended on 12th February 1993. Following complaints as to the conduct of the appellant Watt both appellants walked away from the restaurant whilst their companion retrieved her motor vehicle. As she was driving past the front of the restaurant the complainant struck the boot of the vehicle with his hand and the vehicle stopped. The appellants then returned to this area and it is at this point that the versions of events differ, the complainant alleging that Austin took off his glasses and punched him, with Watt joining in upon the attack. The assaults upon Seiler were not disputed. Austin however contended that the complainant directed the first blow at him and that he, Austin, was then forced to defend himself. Watt's evidence was that he came to the aid of Austin. The magistrate did not accept their evidence. A witness to the altercation, a Mrs Price, was called and the effect of her evidence was that it was the appellants who initiated the altercation although her evidence differed in some respects from that of the complainant.

There were other persons in the vicinity at the time of the assaults namely a Mr and Mrs Young and a Mr Bugler and none of those persons was called either by the prosecution or the defence. Mr Young was said by the investigating police officer to be the person who intervened in the scuffle and who restrained Watt, but it is not known what he could say about the initiation of the assault, no statement having ever been taken from him. He was not in any event subpoenaed, the prosecution explaining that it was considered that his employment might be jeopardised as a result. Mrs Young was, the record discloses, present outside the courtroom when the matter was first heard and although she was initially proposed to be called by the prosecution that did not eventuate because, as the prosecutor said, she did not see the actual assault but only "the remainder". The whereabouts of Mr Bugler and what he might say were not known. When the suggestion was made during argument that Mr and Mrs Young ought to be called the prosecution offered a statement made by Mrs Young but declined to call them as witnesses. The magistrate remarked in his reasons that their evidence may have been of assistance.

The appellants submit that there has been a miscarriage of justice given the prosecution's failure to call these witnesses and as a result they ought to be granted a new trial.

The submissions focus upon the reasons given by the prosecution in not calling Mr and Mrs Young which, it is said, show that the prosecution misconceived what was submitted to be an obligation to call all witnesses to the events where they were not considered unreliable or lacking honesty. Since no such suggestions were made concerning these witnesses, the obligation could be seen to be breached and it would follow that there has been a miscarriage of justice. These submissions misapprehend what is necessary to show that there has been a miscarriage of justice and these appeals can be determined on that basis alone. Some restatement of the responsibilities of the prosecution in calling witnesses does however seem to be necessary.

The submissions made on behalf of the appellants are similar to those advanced in Richardson v. The Queen (1974) 131 C.L.R. 116, 119, namely that the Crown is under a duty to call persons "who can testify to the circumstances giving rise to the offence charged" and would include every eye-witness whether their evidence was likely to inculpate or exculpate the accused. Once this obligation was breached, the argument proceeds, a new trial would be ordered. Neither proposition was considered by the Court (119) to be an accurate statement of the law.

The responsibility of a prosecutor is of ensuring that the Crown case is properly presented conformably with the dictates of fairness to the accused: Richardson v. The Queens 116. It is, I observe, the requirement of fairness consistent with the concept of justice in criminal trials which is the distinguishing feature of what is an adversarial process. The adversarial process otherwise simply leaves decisions as to the calling of witnesses to the judgment of each of the prosecution and the defence. The responsibility of the prosecutor, bearing in mind the dictates of fairness, may require the calling of witnesses whose evidence might not be of assistance in obtaining a conviction: Whitehorn v. The Queen (1983) 152 C.L.R. 657, 663 and in general terms would require all witnesses necessary for the presentation of the whole picture and whose evidence is available and admissible, unless there is a valid reason not to do so for instance such as the number of witnesses to be called on the same point (Whitehorn, 664 per Deane J.) or the reliability and credibility of the witness in question. But these observations by the courts are to be seen as advices to the prosecution as to how the prosecution ought to approach this task and not as laying down rules requiring the calling of particular witnesses or categories of witnesses: Richardson v. The Queen 121. It is the prosecution's decision alone whether to call witnesses (The Queen v. Apostilides (1984) 154 C.L.R. 563, 575) and not a question upon which a trial judge should adjudicate (Apostilides 575). Whilst the decision is often referred to as involving a "discretion" that does not imply that it is subject to any form of review and means simply that it calls for the exercise of personal judgment bearing in mind the prosecutor's responsibilities: Richardson 116.

In practice the prosecution often accedes to a request to make a witness, not intended to be called by the Crown, available for cross-examination. It is a mistake however to infer from that conduct that there is an obligation upon the prosecution to call whomsoever the defence requires: R v. Bellino (C.A. 2/93, unreported decision 12.10.93).

In The Queen v. Apostilides, 575, the sixth proposition

stated by the Court was in these terms:
"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."

which the Court explained further (577). The enquiry is whether a miscarriage of justice has occurred, not whether an error of judgment has occurred. The focus then is upon the consequences "objectively perceived" that the failure to call the witness has had on the course of the trial and its outcome, not upon whether error or misconduct has been shown (although when a miscarriage of justice has been found to have occurred it will often, though not always, be explained by such an error). The effect of a failure to call a witness requires consideration of the likely importance of the missing witness' evidence (as in Bellino p.15, Whitehorn 666). However in other cases as the Court in Apostilides referred, the course of the trial itself may be relevant (see also per Deane J. in Whitehorn at 664).

Here it is not known what, if anything, the witnesses could say about the assaults and more particularly as to who instigated the altercation. Indeed there might be discerned a lack of confidence about this on the part of the appellants' legal advisers who have not, it would seem, made any enquiry. Whilst clearly the witnesses were placed at the scene and at some point during the altercation, from these facts alone it could not be inferred that they witnessed the relevant actions.

The appeals should be dismissed.