Rose v The Queen

[1994] HCATrans 458

CP lE

IN THE HIGH COURT OF AUSTRALIA	1
2
ADELAIDE	3 4
CORAM: BRENNAN, DEANE AND DAWSON JJ	5 6 7 8
No. A3 of 1994	9

10 11 12 13 14

NORMAN JOHN ROSE - APPLICANT	15 16
V	17 18
THE QUEEN - RESPONDENT	19 20 21
22
23 24 25
TRANSCRIPT OF PROCEEDINGS	26 27
THURSDAY, 25 AUGUST 1994 AT 2.20 P.M.	28

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MR S.W. TILMOUTH QC, WITH HIM MR W.R. RETALIC FOR APPLICANT	32
MS A.M. VANSTONE QC, WITH HER MSG. DAVISON FOR RESPONDENT	33
34
35 36

CP lE	2	APPLICANT ADDRESS
MR TILMOUTH:	The basic facts in this case are in the	1

papers, but your Honours will appreciate that the appeal	2
centres upon the application by the Crown to	3
cross-examine and then call rebuttal evidence with	4
respect to the defence witness Overstead.	5

Your Honours will recall that Overstead gave 6

evidence that he and the Crown witness, Robinson,	7
committed the offence with which the applicant was	8

charged. Very late in his evidence, which was towards 9

the end of the trial, of course, because it was a	10
defence case, it emerged that he had in fact implicated	11
the accused in a statement he had given to the police	12
some time earlier in Melbourne which was taken off the	13
record, so to speak.	14
It transpired as well that Crown counsel didn't find out about the statement until the police officer	15
16
concerned was brought over in the prospect of being	17

called to give rebuttal evidence. In the net result, i£ 18

the court pleases, the trial judge, at the end of the	19
trial, allowed Overstead to be cross-examined; that he	20
had told this police officer that he had committed the	21

offence with the applicant. The police officer was also 22

allowed by his Honour to give evidence in rebuttal that	23
that conversation had occurred.	24
In my submission, once that came out, it was very devastating and prejudicial evidence, even though, of	25
26
course, it was only admissible as to the credit of	27

Overstead. The evidence here is not one of those that 28

allows a prior inconsistent statement to be used as 29

evidential. It only goes to credit, unless, of course, 30

the witness admits the statement. 31

DAWSON J:  What is the section? 32

MR TILMOUTH:  Section 28 of our Evidence Act. It is 33

in fairly standard terms. I am sorry, I do not know if 34

I have got copies for your Honours. 35

DAWSON J:	We have all got a copy.	36
MR TILMOUTH:	S~ction 28 is, as I submit, in common	37

terms:  38

CP lE 3 APPLICANT ADDRESS

'If any witness, upon cross-examination as to a former	1
statement made by him relative to the subject matter of	2
the cause, and inconsistent with his present testimony,	3
does not distinctly admit that he has made the	4
statement, proof may be given that he did in fact make	5
it. I	6
Then there is a proviso about bringing his mind to the	7

relevant occasion.	So there is no question of admission	8
as to the truth, as some statutes provide.	In this	9

case, it must be admitted as well that Overstead did not 10

distinctly admit the statement.	In fact, he denied it	11
when it was allowed to be put to him.	So the	12
pre-conditions were there.	13

When it came to argue the matter in the Court of 14

Criminal Appeal, it was put very strongly that it was no	15
small matter of simply a question of the statutory right	16
to enable proof of the inconsistent statement, and it	17
was put to the Court of Criminal Appeal that in a case .	18
like this, the principles of rebuttal evidence	19
pronounced by this court in such cases as Killick	20
applied.	21

His Honour, the learned trial judge, has simply 22

admitted it as proof of the inconsistent statement. The 23

Court of Criminal Appeal in·my submission simply treated	24
the matter as a statutory right to call the evidence	25
under s.28 without more, and, in my submission, that is	26

the error. The cases in this court which deal with this 27

kind of issue such as Killick have all been cases in	28
which the rebuttal evidence is sought to be tendered to	29
rebut an accused's evidence.	30

BRENNAN J:  That may be right. What you are saying 31

is that the provisions of s.28 do not affect the Killick	32
principle?	33

MR TILMOUTH:	Exactly.	34
BRENNAN J:	In this case, was this a case of the	35

application of the Killick principle? 36

MR TILMOUTH:  ~es, it was. 37

BRENNAN J:  Why is that? How would you have got 38

CP lE 4 APPLICANT ADDRESS

this evidence in the Crown's case in chief? 1

MR TILMOUTH:  No, I would not have got it in the Crown 2

case in-chief. Except, of course, if Overstead admitted	3
the statement then, of course, he could have been called	4
in-chief, but in this case, in the end result, he denied	5

it. So it is conceded on that basis it could not have 6

been called in chief. 7

BRENNAN J:  Where is the opportunity for the 8

application of the Killick principle? 9

MR TILMOUTH:  The application of the Killick principle 10

goes beyond just whether the Crown could have called the	11
evidence-in-chief, although that can be, depending on	12

the circumstances in the court, a factor. In this case 13

the principles in Killick's case, which really apply are	14
the fact that it was very late in the defence case.	15

The evidence was highly prejudicial and had no 16

probative value under s.28 and the fact that defence	17
counsel had proceeded - in fact, the whole defence case-	18
had proceeded on the basis that all Overstead had told	19
the police was what was recorded in the statement, which	20
was given to the defence at the request of the defence,	21
to the effect that Overstead admitted committing the	22
robbery, but did not name the offender.	23

When he gave evidence, of course, he said it was 24

with the Crown witness, Robinson. In my submission, 25

those circumstances plainly gave rise to the Killick	26
discretion to exclude it.	27

BRENNAN J:  Where does Killick say there is a 28

discretion to exclude? 29

MR TILMOUTH:  In my submission, the question is 30

essentially one of fairness: both King's case and	31
Killick's case.	32

BRENNAN J:	Take us to the passages.	33
MR TILMOUTH:	If the court pleases, could I do it this	34

way? could I take your Honours to Cheney (1991) 91 ALR	35
360, a decision of the Full Federal Court, because it	36
directly applies; and Cheney also deals with those cases	37
as well.	38

CP lE	5	APPLICANT ADDRESS
BRENNAN J:	Do you have a copy of that at all?	1

MR TILMOUTH:  Yes, we do have copies. In Cheney's 2

case, a virtually identical situation occurred, and the	3
court here in a judgment delivered by Von Doussa J, in	4
which the other two judges agreed, ruled that the	5
evidence should not have been allowed to have been	6

given. I do not deal with the evidence itself, but it 7

is sufficient to say the circumstances were very	8
identical to the current case.	9

BRENNAN J:  Is not this a case of similar fact 10

evidence? 11

MR TILMOUTH:  Not in this respect, no. In Cheney's 12

case the accused called his sister to give evidence and	13
she was allowed to be cross-examined on prior	14
inconsistent statements she had given to the police	15
about which the defence were not aware.	16

What happened in Cheney's case was that it held that 17

the principles in Killick applied in these	.	18
circumstances, and if I can take your Honours to p.377,	19
Von Doussa J's judgment, his Honour discusses the	20
Killick line of cases between lines 5 and 10.	He then	21

discusses the decisions of this court in Lawrence and 22

Chin, which effectively are to the same effect.	An	23
accused person shall not be cross-examined on new	24
material unless it is led in the Crown case.	Then at	25

line 35 he dealt with the same issue that arose	26
here:	27

'In the present case it is difficult to see how the	28
prosecutor could have led evidence as part of the Crown	29
case that the appellant had asked his sister to change	30

her story.	It is not suggested that anyone else was	31
present at the conversation.	Gail Cheney had been	32

called as a witness for the Crown at the committal 33

hearing but had been declared hostile. The Crown was 34

on notice that the defence will call Gail Cheney in 35

support of the appellant's alibi. I do not think it can 36

be said in the present case that the issue whether the	37
appellant had asked his sister to change her story was	38

CP lE 6 APPLICANT ADDRESS

one that could have formed part of the evidence-in-chief 1

in the Crown case. Nevertheless the question of 2

fairness still arises. In Niven v R (1968) 42	3
AJLR 306 evidence in reply had been called by the crown	4
after the defence case had closed to establish a prior	5
inconsistent statement.'	6

Then the court went on to deal with Niven's case.	At	7
378 it went on to note that in Niven, this court,	8
line 4:	9

'The High Court held that this provision did not confer	10
a paramount right to have evidence admitted.'	11
And then quoted from Niven's case at about line 15,	12
I think it is, and then concluded at line 41:	13
'In the present case I think an element of unfairness	14
arose by reason of the prosecutor asking the question	15
directed to obtaining an admission that the appellant	16
had asked his sister to change her story when no notice	17

had been given to the defence of the matter. The 18

failure to give notice deprived the appellant of the	19
opportunity to decide whether to call the evidence of	20
Gail Cheney.'	21
And likewise may be said here about the decision to call	22
overstead:	23
'However, had the matter not been followed up by the	24
prosecutor's application under s.61 of the Ordinance to	25
recall Sergeant Lawler in reply, the element of	26
unfairness involved may have been of little consequence	27

in the overall course of the trial. The application to 28

recall Sergeant Lawler raises squarely for consideration 29

the exercise of the discretion of the trial judge. The 30

discretion is one that must be exercised having regard	31
to all the circumstances of the case: Killick v R (CLR	32

at 576). Evidence should only be allowed where it goes 33

to a serious material point, and where its probative	34
value clearly outweighs the prejudicial effect that is	35
likely to arise from the timing of the evidence:	36
Lawrence v R at 1·6.'	37
Then the court went on to refer to Kern's case which I	38

CP lE 7 APPLICANT ADDRESS

also relied on in the court of Criminal Appeal. 1

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EBo lF 8 APPLICANT ADDRESS

Then over to p.379 the court then discussed again 1

Killick's case in reference to Ghion. It repeated the 2

fact at lines 16 to 18 that evidence could not have been 3

called in the Crown case. It noted that the discretion, 4

line 24, will be exercised depending on the relative	5
strength and the probative force of the evidence and so	6

on. It noted at line 33 that the evidence only went to 7

credit, as it did here, and concluded at lines 43 and 44	8
that the evidence ought not to have been admitted.	9

The up-shot of all of that is that the Full Court of 10

the Federal Court in this case, the Court of Criminal	11
Appeal of Queensland in Ghion, has determined that the	12
principles of Killick apply to rebuttal evidence	13
relating to a defence witness other than the accused	14
even though the relevant rebuttal evidence could not	15
have formed part of the present case of the Crown case.	16

DAWSON J:  I do not know whether it is called 17

rebuttal. It is not rebutting anything. 18

MR TILMOUTH:  In the sense that it only goes to 19

credit, that is true. 20

BRENNAN J:  Your submission is that evidence of a 21

previous inconsistent statement made by a witness for	22
the defence ought not to be allowed to be given after	23
the defence case is closed,,where the giving of the	24
evidence is likely to have a serious prejudicial effect	25
upon the defence case, without adding substantially to	26
the proof of the defences of the,defendant's guilt.	27

MR TILMOUTH:  Yes, that would more or less suffice, 28

but more than that I would add in a case such as this	29
where the evidence clearly had no probative value	30
because of the section and where its prejudicial effect	31
was so obviously high, no matter how the jury were	32
directed it still came out that Overstead had said that	33
and there was all the more reason to disallow the	34
cross-examination.	35

DAWSON J:  That would mean that you could 36

practically neve~ apply s.28 in a case where the witness	37
that was cross-examined was a witness in the defence	38

EBo lF 9 APPLICANT ADDRESS

case. 1

MR TILMOUTH:  It depends on a number of factors, but 2

to the extent that that is true, it must be so to ensure 3

a fair trial. Because of the fall of events here, the 4

applicant was denied a fair trial because the evidence	5
was so telling when it got in.	6

DAWSON J:  Evidence may be telling, but that is not 7

really a reason. That does not go to fairness. The 8

reason why the court turns its face against the Crown	9
splitting its case is because if it calls evidence in	10

rebuttal that is the end of it. In this case it is put 11

to the accused during the course of his putting his	12
case. It is raised in cross-examination. It can be	13
dealt with and this merely sews it up.	14

MR TILMOUTH:	It was put to the witness, that is true.	15
BRENNAN J:	Say in this case the prosecutor had been	16

made aware by the police officer of this previous 17

inconsistent statement and had apprised the defence	.	18
counsel of it.	It seems curious in the extreme if the	19

defence counsel is able to say 'I am going to call	20
Overstead anyhow because yqu will never be in a position	21
to prove that he is a liar', that seems extraordinary.	22

MR TILMOUTH:  That is true, but of course the notice 23

would be fatal to any application to disallow the	24
rebuttal evidence.	25

BRENNAN J:	Why?	26
MR TILMOUTH:	Under King's case the criterion is	27

fairness and fairness is most often satisfied by giving 28

prior notice of the desire to cross-examine. King, of 29

course, concerned an accused but the principle is the 30

same. The other thing that was argued in the Court of 31

Criminal Appeal is that it was even more fundamental	32
than the debate going on because it was on the	33
assumption that the statement that had been given to the	34
defence relating to Overstead - that the decision was	35
made to cross-examine the Crown witness Robertson and	36
allege that he co~itted the offence which, after all,	37
is a very serious thing.	38

EBo lF 10 APPLICANT ADDRESS

It can only be done on proper material. The 1

applicant made an election not to give evidence at his	2
own trial and made the decision to call Overstead in his	3

defence. In my submission, that produced the further 4

element of unfairness in the trial because all the key	5
decisions which were made in the defence case were	6
governed by the assumption that what had been supplied	7
was the total picture in relation to what Overstead had	8
told the police.	9

King's case, and indeed Killick's case, talks about 10

the importance of notice so that adequate decisions can	11
be made by the defence about whether to cross-examine,	12

whether to call witnesses and so on. The error here 13

was, without reading it at pp.35 and 36, that the court	14
of Criminal Appeal simply regarded the matter as a	15
statutory right under s.28 to call the rebuttal	16
evidence, and at 35, lines 29 to 31, simply said that	17
the cases of Cheney and Kern turned on their own facts..	18

What was being argued in relation to Kern and Cheney 19

was the question of principle, and the decision in this	20
case means that there is a different rule in South	21

~

Australia to that pertaining at least under the Kern and	22
Cheney regime which is that the Killick principles apply	23

to other witnesses other thqn the accused. The effect 24

of this decision which is inconsistent to those two	25
principles is that the Killick principles do not apply	26

to defence witnesses other than the accused. That is 27

the special leave point. 28

Finally, there was the question of disclosure. The 29

evidence was that the Victorian police officer told the	30
South Australian investigating police about the issue,	31
but for whatever reason they never chose to tell the	32

Crown Prosecutor.	It was never explained at all by the	33
Crown how that state of affairs came about.	In my	34

submission, had the Crown known, of course there would	35
have been an obligation of disclosure.	36

If Overstead admitted that he said that to Detective 37

McDonald, of course it would have been very powerful 38

EBo lF 11 APPLICANT ADDRESS

evidence, however used, against the accused. So there 1

is within the issues I have sought to agitate that 2

sub-issue about the question of disclosure. But in sum, 3

this decision on the issue of whether the Killick	4
principles apply to rebuttal evidence other than	5
witnesses of the accused is inconsistent with the	6
decisions of two other Courts of Criminal Appeal.	7
In my submission, that is a proper special leave point and the facts of this case make it a suitable	8
9
vehicle to agitate that question.	10

BRENNAN J:  The court is of the opinion that this 11

case does not enjoy a sufficient prospect of success to	12
justify a ground of special leave. Accordingly, special	13
leave will be refused.	14

ADJOURNED 2.44 P.M.	15 16 17 18 19
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