Supreme Court of Western Australia
[2002] WASCA 90
•22 APRIL 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | COURT OF CRIMINAL APPEAL | |
| CITATION | : | BULLER -v- THE QUEEN [2002] WASCA 90 |
| CORAM | : MALCOLM CJ WALLWORK J TEMPLEMAN J | ||
| HEARD | : 12 FEBRUARY 2002 | ||
| DELIVERED | : 22 APRIL 2002 | ||
| FILE NO/S |
| ||
| BETWEEN | : ROBYN DALE BULLER |
Appellant
AND
THE QUEEN
Crown
Catchwords:
Criminal law - Wilful murder - Doctor called by prosecution - Told jury that gas from rifle had caused disruption within deceased's skull - That suggested a close up shot - Defence not alerted to this evidence prior to trial - Whether defence request for adjournment should have been granted - Whether doctor's evidence should have been disclosed prior to trial
Legislation:
Criminal Code, s689(1)
[2002] WASCA 90
Result:
Appeal allowed
Conviction quashed
Retrial ordered
Category: A
Representation:
Counsel:
| Appellant | : | Mr E J Meyers |
| Crown | : | Mr D Dempster |
Solicitors:
| Appellant | : | E J Meyers |
| Crown | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228A,
11 November 1996
Grey v The Queen [2001] HCA 65; [2001] ALJR 1708
Queen v Easom [1981] 28 SASR 134
R v Devenish [1969] VR 737
Regina v Brown [1998] AC 367
Wilde v The Queen (1988) 164 CLR 365
Case(s) also cited:
Driscoll v The Queen (1977) 137 CLR 517
Leary v The Queen [1975] WAR 133
Mraz v The Queen (1955) 93 CLR 493
R v McGill [1967] VR 683
Simic v The Queen (1980) 144 CLR 319
Stokes v The Queen (196) 105 CLR 279
Thornberry v The Queen (1995) 69 ALJR 777
[2002] WASCA 90
MALCOLM C J
MALCOLM CJ: This is an appeal against conviction. The facts are fully set out in the reasons for judgment to be published by Wallwork J. In my opinion, the evidence of Dr Cadden, who was not called as a witness at the preliminary hearing, was very significant evidence. He gave his opinion which was to the effect that the muzzle of the rifle had been 5 cm or less from the deceased's head when it was discharged. One reason he gave for his opinion was that gas discharged from the rifle when it was discharged had entered the skull of the deceased and had caused particular damage to the interior of the head, including the brain.
2 In opening the case to the jury, counsel for the Crown said that
Dr Cadden would give evidence that the shot that was fired and caused the fatal wound was fired either with "loose contact" with the muzzle of the rifle being held "lightly" at the back of the head at a maximum of 5 cm away. At the conclusion of the opening counsel for the defence informed the Court that the appellant would admit that the deceased had died on or about 26 June 1999 as a result of a gunshot wound to his head from a Rossi 0.357 rifle. The jury was then sent out for a break.
3 Counsel for the appellant said that Dr Cadden's post-mortem report
contained no reference to an estimation of the distance of the muzzle from the head of the deceased and no prior notice had been given of such evidence. At the preliminary hearing a Constable Davies had given evidence that while the shot had been a "short distance shot, it was not possible to give a precise distance". The evidence at the preliminary hearing was that the relevant distance was less than 2 or 3 metres. The evidence of Dr Cadden was the first indication that the Crown would rely on the entry of gas into the head of the deceased to support an opinion, not expressed in his report, regarding the closeness of the barrel of the rifle to the head of the deceased, at the time it was fired.
4 I agree with Wallwork J that in this context Dr Cadden's evidence
regarding the distance from which the shot was fired was of great significance because of the defence of accident and the appellant's evidence that when she realised that the deceased was dead, she had tried to recock the weapon to kill herself, but the weapon had jammed.
5 It is of significance that counsel for the appellant contended that
there had been no suggestion by anyone prior to the trial that gas discharged from the weapon had contributed to the wound inflicted in any way. At the preliminary hearing a Mr Collins, a forensic scientist or chemist, was cross-examined on the distance and said that the distance
[2002] WASCA 90
MALCOLM C J
was less than 2, probably less than 3 metres, but the precise distance could
not be established.6 In the result, the trial was adjourned for half an hour to enable
counsel for the appellant to make some enquiries. These indicated that only one forensic pathologist was then available. Counsel wished to make enquiries interstate. An application for an adjournment of the trial was refused. I agree with Wallwork J that the trial Judge erred in the exercise of his discretion by failing to grant a longer adjournment to discharge the jury and adjourn the trial.
7 The duty of the Crown with respect to disclosure in order to ensure a
fair trial was stated in Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 at 9 per Malcolm CJ. It is of the utmost importance that that this duty be scrupulously observed in order to ensure that an accused has a fair trial: Regina v Brown [1998] AC 367 and the other cases cited by Wallwork J. Suffice it to say that I agree with Wallwork J for the reasons his Honour has expressed that the appellant in this case should have been given time to investigate the matter . The issue whether there was an alternative explanation consistent with the appellant's account of what happened was critical to the defence. As Wallwork J has pointed out, as it was, on the limited evidence before them the jury required the evidence of Dr Cadden and another expert called by the Crown concerning the "sooting" around the fatal wound to be re-read to them, in the course of their consideration of the evidence for some 8 hours.
8 I agree with Wallwork J that, on the principles stated in Wilde v The Queen (1988) 164 CLR 365 at 371 – 372 by Brennan, Dawson and Toohey JJ as recently followed by the High Court in Grey v The Queen [2001] HCA 65 at [25]; [2001] ALJR 1708 at [25] per Gleeson CJ, Gummow and Callinan JJ, the conviction in this case should be set aside. The refusal of the adjournment was a departure from the requirements of a properly conducted trial. While I would have preferred the appellant to have put before this Court such evidence as reasonable diligence may have obtained in relation to the issue, the denial of the opportunity to make reasonable enquiries was a departure from the requirements of a properly conducted trial. It cannot be said in this case that the jury appropriately included and having the benefit of all the available evidence would inevitably have convicted the appellant.
For these reasons I would allow the appeal, quash the conviction and
order a retrial.
[2002] WASCA 90
WALLWORK J
WALLWORK J: On the 16 March 2001 the appellant was convicted of wilful murder. She now appeals against the conviction. The ground of the appellant's appeal is that the learned trial Judge erred in refusing to grant an application on behalf of the appellant that the trial be adjourned. The basis for that application was that the appellant's counsel claimed that he had been taken by surprise by evidence given by a medical witness who had been called by the prosecution.
11 At the trial the appellant had admitted that a rifle held by her had
discharged and killed the deceased. The appellant claimed that the discharge of the rifle had been accidental. The prosecution called Dr Cadden who said in evidence that one of the reasons for his opinion that the muzzle of the rifle had been five centimetres or less from the deceased's head when it discharged, was that gas discharged by the rifle had entered the skull of the deceased and caused the disruption in the deceased's head which he had observed.
12 The appellant contended that prior to the commencement of the trial
there had been no indication to the defence that one of the reasons for Dr Cadden's opinion that the muzzle of the rifle had been five centimetres or less from the deceased's head when it discharged, was the effect of gas which had discharged from the rifle at the same time as the bullet. It was contended for the appellant that Dr Cadden had not mentioned the effect of the gas in his post-mortem report and that the first time the appellant had had notice of that evidence was at the trial. It was submitted that the distance of the rifle muzzle from the deceased's head at the time of the fatal shot was critical to the defence of accident which had been relied on by the appellant, and that Dr Cadden's evidence significantly weakened that defence.
13 In short, the appellant contended on appeal that the learned trial
Judge should have allowed the application for an adjournment in order that the question concerning the gas discharge could be investigated by the defence before the trial proceeded further.
14 It was conceded for the respondent at the hearing of the appeal that
the prosecution had not notified the appellant's representatives prior to the trial that Dr Cadden would give evidence concerning the effect of gas discharging from the barrel of the rifle.
15 The appellant contended that the first mention of Dr Cadden's
detailed evidence concerning the distance the rifle had been from the deceased's head when the bullet discharged, had been in the opening by
[2002] WASCA 90
WALLWORK J
the learned prosecutor who had referred to the evidence which Dr Cadden would give. The prosecutor said that Dr Cadden's conclusion was that the fatal wound was from either:
"… loose contact or near contact range. By 'loose contact' he means that the muzzle of the rifle was held lightly against the back of the head, not firmly but lightly, or alternatively in a range the other end, a maximum of five centimetres away, a near shot, five centimetres or two inches away."
16 At the conclusion of the learned prosecutor's opening at the trial,
counsel for the defence advised the jury that the accused would admit that the deceased had died on or about 26 June 1999 as a result of a gun shot wound to his head from a Rossi 0.357 rifle. The Judge then allowed the jury a break for about 10 minutes. It was then that counsel for the defence advised that he wished to say something in the absence of the jury.
17 Counsel said to the Judge that the learned prosecutor had told the
jury that Dr Cadden would give certain evidence in relation to the distance that the firearm had been from the back of the deceased's head at the time it was fired, but that that distance had not appeared in Dr Cadden's report:
"… and that was the first that I have heard that that distance
would be given in evidence."
18 Counsel submitted that at the preliminary hearing Constable Davies
had given evidence that whilst it had been a "short distance shot, it was not possible to give a precise distance." Evidence had been also given at the preliminary hearing that the relevant distance had been something less than two to three metres.
19 Counsel for the appellant told the learned trial Judge: "It is the first
time I have heard that the evidence would be that the muzzle of the gun was resting lightly on the back of the deceased's head", or five centimetres away at the maximum. Counsel asked for time to take some instructions concerning Dr Cadden's evidence. It was then arranged that Dr Cadden would not be called early in the trial in order that defence counsel could consider the matter.
20 When he gave his evidence in chief, Dr Cadden was asked by the
learned prosecutor whether he was able to estimate the distance from the muzzle of the gun to the point of impact, or the entry point of the bullet. Dr Cadden said:
[2002] WASCA 90
WALLWORK J
"Based on the sooting at the wound margin and the degree of distortion of the head and the appearance of the wound itself, it suggests to me that much of the gas that was discharged from the muzzle entered the head to cause the degree of distortion I have illustrated and to separate the cerebral hemispheres, and basing it on that, I would suggest that this is an angled near contact wound… In saying that its an angled near contact, I am suggesting that there is a short distance in the order of a small number of centimetres away from the head surface, suggesting that it is not actually up against the head surface itself, that is in the - in my assessment of it, it's been a short distance, a few centimetres, a small number of centimetres away from the head."
When he was asked to clarify that, Dr Cadden said:
"I am indicating I would have thought, for instance, five or less. I am basing that on the degree of distortion and the fact that much of the gas must have entered the head to cause the severity of the injury and set the situation for traumatic evisceration."
22 This Court was told that the evidence of Dr Cadden was the first
indication given to the defence that Dr Cadden would rely on the entry of gas to the head of the deceased to support his opinion concerning the closeness of the barrel of the rifle to the head of the deceased, at the time it discharged.
23 The evidence from Dr Cadden in this regard was very important for
the prosecution case as the appellant had intended to, and did give
evidence, that she had caused the deceased's death by way of an accident.24 In her evidence, the appellant said that after she had told the
deceased that she thought she was pregnant, he had yelled at her and shaken her. She said that she had curled into a ball on the floor and he had kicked her a couple of times. He had then made her perform degrading sexual activity by her taking a rifle barrel into her mouth and simulating oral sex. He had eventually rolled over and gone to sleep. She said she had felt like "the lowest form of life on earth", that she had felt degraded. She had then thought of killing herself. She had picked up the rifle. She was leaning backwards into the enclosure of the window in the bedroom, hugging the rifle to her. However, she could not pull the trigger. She thought she had started crying and "sort of sat back against
[2002] WASCA 90
WALLWORK J
the wall." She was not sure. The rifle was just away from her head a little bit and she started lowering it. Her right hand finger was still on the trigger. When asked how far would the end of the barrel had been from the deceased at that time, she said, "It would have been a couple of feet, I think." There were no lights on in the room. She thought her crying must have disturbed the deceased because he moved and she jumped "and there was a very loud noise… the gun went off." When she realised the deceased was dead she had tried to re-cock the gun to kill herself but the gun had jammed. She had then cried.
It was put to this Court by counsel for the appellant that at the trial the Crown had relied on a number of matters to prove intent they being:
1. The nature of the wound, being a "close contact wound" from a rifle held no more than five centimetres from the entry wound. 2. Computer searches by the accused that contained references to a "hit man". 3. The appellant's disposal of the body of the deceased by driving with it for about 18 kilometres in the boot of a car and then attempting to put the car into a dam. 4. The appellant's attempt at concealment of the shooting at the appellant's home by cleaning to remove evidence. 5. Computer searches by the appellant which related to forensic evidence. 6. The deliberate setting fire by the appellant to the bed and bedroom where the death occurred. 7. Lies told by the appellant to the police and others about the whereabouts of her deceased husband. 26 After Dr Cadden had given his evidence in chief and during cross
examination he was asked whether the fact that the bullet had broken up could have been a reason for the amount of damage and disruption to the skull which he had observed. The Doctor answered: "The disruption I would suggest is predominantly because of the cloud of gas from the discharge of the firearm." He was then asked: "I know you are suggesting that, but doesn't the projectile in effect explode within the skull?" The Doctor answered: "I think it disintegrates and fragments within the skull, but the degree of distortion I think is predominantly caused by the cloud of gas."
[2002] WASCA 90
WALLWORK J
27 It was stressed for the appellant during the hearing of this appeal that
as far as the defence knew, the question of the gas had never been referred
to prior to the trial.
On the second morning of the trial counsel for the defence made an application that the trial be adjourned on the basis that:
"My learned friend opened yesterday on Dr Cadden's evidence and he opened on the basis that the Crown's case would be that the fatal shot was fired from a distance less than five centimetres from the skull… The reason for Dr Cadden's opinion was not disclosed in the opening I don’t think sir, and the distance that the Crown was going to allege had not previously been raised in any report or material given to the defence by the Crown and in fact at the preliminary hearing which occurred on 3 April last year 2000, Mr Collins a forensic scientist or chemist, was cross examined on the distance sir, and he gave an indication that the distance was less than two, probably less than three metres, but the precise distance could not be established. As far as the defence were aware that was the Crown's position, I suppose, with respect to distance."
29 When the learned trial Judge asked whether there had not been
evidence of sooting in the post-mortem report, counsel replied that the sooting which had been referred to was not a complete circumference. It had certainly indicated close range:
"but there was nothing in that report to indicate that the distance was in fact less than five centimetres and when Dr Cadden came to give his evidence sir, he actually gave a reason for making the finding and that's pages 170, 171 when he is being cross examined, and he is indicating the disruption to the skull. In other words, a fracture to the skull and the evisceration of the brain, both hemispheres of the brain, was caused by the gas pressure…"
Counsel said:
"That's the first time that that reason for - it’s the first time that that evidence has been disclosed to the defence. I can indicate to you sir, that the distance at which the gun was fired is a matter that is critical to the defence. The defence certainly considered what expert evidence it should call but given the
[2002] WASCA 90
WALLWORK J
state of the forensic pathology report, it didn't engage a forensic
pathologist."
31 Counsel advised the Judge that the only independent expert he was
aware of who could give the relevant evidence in this State was Dr Pocock. He said he was not sure whether Dr Pocock was available or not. He submitted that the defence would need to make enquiry of Dr Pocock and of course that was a real problem "because there are possibly alternate causes to gas entering the skull that might account for the disruption. It really is such a critical area to the defence, the distance from which the shot was fired, that without the opportunity to present its own forensic pathology evidence the defence would be prejudiced."
32 The appellant's counsel repeated that he needed to consult an expert
in relation to other possible causes of the disruption of the skull and in relation to Dr Cadden's opinion. He said he needed to obtain a forensic pathologist's advice on Dr Cadden's opinion.
33 In reply, counsel for the prosecution advised that at the preliminary
hearing the defence counsel had cross examined Senior Constable Eric Davies as to the distance from which the shot was fired and also Mr Peter Collins, an analytical chemist. He said that Mr Collins had said in his report that the firearm had been discharged from close range:
"so it comes as no surprise of course to the defence that the
Crown case is that the firearm was discharged at close range."
The prosecution offered to have Dr Cadden recalled if the defence counsel wished to cross examine him further.
35 The learned trial Judge appreciated the problem and said that he
thought the problem was a little more complex than had been suggested
by prosecution counsel because:"I think what Mr Meyers is suggesting is that he will need to get an alternative forensic pathologist to see if there was another or other possibilities open before he can re-cross examine Dr Cadden as it were."
36 Counsel for the appellant then told the learned trial Judge that he
would like to make enquiries. The trial was adjourned for half an hour to
see what the enquiries revealed.
[2002] WASCA 90
WALLWORK J
37 Counsel for the appellant then advised the learned trial Judge that
forensic pathologist experts were not readily available in this State. There was only one available. He said that the appellant wished to consult with experts and put the propositions fairly and squarely to them. That probably meant going interstate and that was not something which could be done within the course of the trial. Counsel repeated that the indication that the gun was fired at a close range was not within Dr Cadden's report, apart from the sooting which the defence enquiries had revealed might be found with a shot from two metres or less. He repeated to the Judge that Dr Cadden had given a particular reason for his opinion which had not been disclosed in the preliminary papers. He submitted that the reason was a material fact in support of the doctor's opinion and one which would be expected to be disclosed to the defence in the normal course of action. He submitted that if there was a reason for giving an opinion it should be disclosed as the Doctor was in the position of an expert who had been called on behalf of the Crown.
38 Counsel submitted that there had been nothing to alert the defence to
the fact that Dr Cadden would say that the relevant distance had been five centimetres. The fundamental problem was the reason given by Dr Cadden that it had been the gases which had caused the disruption of the skull and the evisceration of the brain. That basis as the reason supporting Dr Cadden's conclusion had not been disclosed at all in the preliminary papers.
39 It was submitted for the defence that they had taken steps in relation
to an expert concerning the evidence of Senior Constable Davies. The
expert concerned was not a forensic pathologist.40 The learned Judge ruled that he thought there had been ample notice
in the depositions that the gun had been in fairly close proximity to the skull and that enquiries could have been made of Dr Cadden "long before now." His Honour said:
"If you wish to get instructions from some forensic expert I am sure you can do so and if you want Dr Cadden recalled at some later stage in the trial I will hear an application as to that for further cross examination. Of course it is still open to you to call whatever evidence you wish to call in your defence. So I think we should proceed with the trial."
41 As already stated the ground of appeal is that the learned trial Judge
erred in refusing to grant an application by the appellant that the trial be
[2002] WASCA 90
WALLWORK J
adjourned on the basis that the appellant was taken by surprise by the evidence of Dr Cadden. The question is, whether the learned trial Judge should have granted an adjournment of the trial to enable the defence to make further enquiries concerning the evidence of Dr Cadden relative to the gas emission from the rifle. An alternative course would have been for learned Judge to discharge the jury and adjourn the trial to a later date.
42 In Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228A, 11 November 1996 Chief Justice Malcolm said at p 9 of his reasons:
"In order for there to be a fair trial the Crown is obliged to disclose to the defence all material available to it that is relevant or possibly relevant to any issue in the case: R v Keane (1995) 99 Cr App Rep 1… In Archibald 1995 Vol 1 pars 4.265 - 4.272, the duty of disclosure to the defence by the prosecution is summarised. In R v Brown it was held that the Crown is obliged to disclose to the defence:
'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 an issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) To hold out a real as opposed to a fanciful, prospect of providing a lead on evidence which goes to (1) or (2).'"
The Chief Justice continued at p 11:
"Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice: Clarkson v DPP [1990] VR 745 at 755 per Murphy J; and see The Queen v Apostilides (1984) 154 CLR 563."
At p 12 his Honour said:
"It was accepted that the relevant criteria to be applied in determining whether there has been a miscarriage of justice is whether disclosure of the material in question to the defence
[2002] WASCA 90
WALLWORK J
might well have influenced the result of the trial: see Clarkson
and Bryer above."
45 In this case it was submitted for the appellant that the jury had
deliberated for almost eight hours before returning a guilty verdict on the count of wilful murder and that during its deliberations the jury had returned to request that the whole of Dr Cadden's evidence and the whole of Mr Zurhaar's evidence be read to it. Mr Zurhaar's evidence had concerned the sooting around the wound.
46 Counsel for the respondent submitted that at all times the defence
well knew that the Crown case was that the fatal shot had been fired from a close range and that at the preliminary hearing two witnesses called by the Crown had given evidence to that effect. In particular, it was said that at the preliminary hearing Senior Constable Davies had estimated a distance of a minimum of half an inch up to a maximum of six inches. A second witness, Mr Peter Collins, a forensic chemist, had talked of gun shot residue and had not been in a position to give a definitive view as to the relevant distance but had said that he thought it was probably less than three metres. Reference was also made to the passage in Dr Cadden's pre- trial report which referred to a gun shot wound to the head resulting in a gaping would with traumatic evisceration of the brain. It was said that it was clear from further information in the report that the brain of the deceased had become completely dislodged. Dr Cadden had also noted in that report that there had been black coloured sooting within which yellow mustard coloured residue particles were present around the scalp wound.
47 It was submitted for the respondent that it would not have come as a
surprise to the defence counsel that Dr Cadden took the view that this had been a close range shot. It was said that at the trial the defence counsel had taken the opportunity of cross examining Dr Cadden extensively and it was only on the next morning that the defence counsel had raised with the learned trial Judge the difficulties which he saw. He had then been given an adjournment to ascertain whether he could make contact with another forensic pathologist. Mention had been made of Dr Pocock but there were other forensic pathologists within the State. It was pointed out that the learned trial Judge had been prepared to allow for Dr Cadden to be available for further cross examination if that was needed by the defence.
48 It was conceded for the respondent that the doctor had not mentioned
gases in the post mortem report. However it was submitted that the defence would have known that it was his opinion that it had been a close
[2002] WASCA 90
WALLWORK J
contact shot. The particular reasons for his view could have been requested in advance. It was submitted that the post mortem report had been handed in by consent at the preliminary hearing. Ultimately there had been no unfairness in the circumstances of the case.
49 It was further submitted that even at the time of the appeal there had
been no suggestion that another forensic pathologist would contradict Dr Cadden's view. This was said to be important because a miscarriage of justice is assessed on the basis that the appellant has been deprived of a real chance of acquittal. It was submitted that this Court would have to ask if the whole matter were revisited by a retrial, what would the difference be? In that sense there was nothing to suggest that another forensic pathologist would take a different view or that Dr Cadden was fundamentally wrong in his view.
50 The problem with that proposition is that without knowing what
another expert might say it could not be said that a jury would have
inevitably have convicted the accused.51 At the hearing of this appeal counsel for the appellant referred to a
passage in a leading text by Di Maio, Gunshot Wounds, 2nd ed, ch 7
at 181 ff which states:"In the intermediate-range gun shot wounds, power tattooing is present around the wound of entrance. Intermediate-range and distant head wounds, show a wide range in the degree of severity, depending upon the style of bullet and the entrance site in the head. Anything that tends to produce instability, deformation or break up of the bullet as it enters the head results in more extensive injuries. Thus, bullets entering through the thick occipital bone cause greater injuries than those entering the temporal area. Intermediate and distant range wounds of the head can be just as devastating as contact wounds… This is especially true for hunting ammunition. As the hunting bullet rapidly expands, shedding fragments of core and sometimes jacket, large quantities of kinetic energy are lost in the cranial cavity. This produces a large temporary cavity with resultant high pressure, all within the rigid framework of the skull. The pressure produces extensive fragmentation of bone and brain tissue. Location of entrance and exit wounds may require extensive reconstruction of the skull, with careful realignment of the edges of the scalp and bone."
[2002] WASCA 90
WALLWORK J
52 If similar propositions to those in the passage in Di Maio quoted
above had been put to Dr Cadden, he might have accepted that injuries of the kind suffered by the deceased could have been caused by an intermediate range shot. In other words, that the injuries to the deceased may have been consistent with the accused's evidence.
53 In Regina v Brown [1998] AC 367 at 374 Lord Hope of Craighead, whose reasons for judgment were agreed to by the other four Law Lords comprising the House of Lords on that occasion, said at p 374:
"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. Fairness also requires that the rules of natural justice be observed."
In Queen v Easom [1981] 28 SASR 134 Wells J, with whom White and Mohr JJ agreed said at p 151:
"However, we acknowledge that the discretion which rests in the Crown not to call witnesses for the Crown case at the trial is circumscribed by the following rules:
(I) Where the Crown calls a witness who did not give evidence at the committal proceedings, the accused should be given reasonable notice of the Crown's intention to call that witness and should be furnished with a proof of the witness's proposed evidence (R v Greenslade (1870) 11 Cox CC 412; R v Devenish [1969] VR 737…"
55 In this case Dr Cadden did not give evidence at the committal
proceedings although his report had been available to the defence. The
report did not refer to the results of the discharge of gas by the rifle.
In R v Devenish [1969] VR 737 Winneke CJ and Gowans and Gillard JJ said at p 739:
"It was only during the trial that notice was given to the applicant of the Crown's intention to adduce this evidence as additional evidence. Although such a late notification would not render the evidence inadmissible, it was in breach of a well recognised rule of practice that reasonable notice of intention
[2002] WASCA 90
WALLWORK J
should be given to an accused person if it is proposed to adduce additional evidence against him upon his trial. It is necessary in the interests of the orderly administration of justice that this rule of practice should be observed and in this regard we refer to the decision of the Full Court in the case of R v Brown (1869) 6 W.W & a,b(L) 239; 1 A.J.R. (N.C.) 59."
57 It can be seen from the above authorities that the Crown has an
obligation to advise the defence of evidence which it proposes to call
which could be, and in this case was, most important to the defence case.58 In my opinion, the defence should have been given adequate time to
investigate the ramifications of Dr Cadden's evidence concerning the discharge of the gases from the rifle and the resultant damage within the deceased's skull after the application was made by defence counsel for an adjournment of the trial, and before the trial proceeded further.
59 Section 689(I) of the Criminal Code relevantly provides that on any appeal against conviction a Court of Criminal Appeal shall allow the appeal if they think that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.
In Grey v The Queen (2001) 75 ALJR 1708 at 1713 Gleeson CJ, Gummow and Callan JJ said:
"In Wilde v The Queen (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ however stated the effect of the authorities to be:
'Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in R v Storey (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside… Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the
[2002] WASCA 90
WALLWORK J
TEMPLEMAN J
relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question on which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.'"
61 In my view, it could not be said in this case that the jury would
inevitably have convicted the accused if the defence had had the opportunity to adequately cross examine Dr Cadden having consulted experts concerning his evidence and perhaps to have called its own evidence on the question. The jury required the evidence of Dr Cadden and the other expert concerning the sooting evidence around the wound to be re-read to them. The jury considered the evidence for a period of eight hours.
I would allow the appeal and order a re-trial.
TEMPLEMAN J: I agree, for the reasons given by Wallwork J, that the appeal should be allowed and a re-trial ordered.
4
5
1