Tasmania v Tuv

[2012] TASSC 7

[2012] TASSC 7

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Tasmania v TUV [2012] TASSC 7

PARTIES:  TASMANIA, State of
  v
  TUV

FILE NO/S:  362/2011
DELIVERED ON:  19 March 2012
DELIVERED AT:  Hobart
HEARING DATE:  19 March 2012
JUDGMENT OF:  Evans J

Criminal Law – Procedure – Course of evidence, statements and addresses - Addresses - Discretion to depart from the statutory order of addresses.

R v Ferguson [2000] TASSC 151; DPP; Re Y (1998) 19 WAR 47; Musarri v R [2006] WASCA 92 [152], applied.
Criminal CodeAct 1924 (Tas), s371.
Aust Dig Criminal Law [3132-3135]

REPRESENTATION:

Counsel:
           Crown:  J E Ansell
           Accused:                  G J Barns
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:                  PWB Lawyers

Judgment Number:           [2012] TASSC 7
Number of paragraphs:    7

Serial No 7/2012
File No 362/2011

STATE OF TASMANIA v TUV

REASONS FOR JUDGMENT  EVANS J

19 March 2012

1. The law on what the Criminal Code, s371, says with regard to the order of counsel's addresses on a criminal trial is as enunciated by Blow J in R v Ferguson [2000] TASSC 151. For relevant purposes, as explained by his Honour at [14], if an accused tenders an exhibit during the cross-examination of a prosecution witness, that constitutes adducing evidence for the purposes of s371(d), with the result that the accused or his or her counsel is required, pursuant to that provision, to address the jury before counsel for the prosecution.

1. However, as explained by his Honour at [15], there is authority for the proposition that s371 and its broadly similar Western Australian equivalent lay down rules which are directory, as distinct from mandatory, and that a trial judge has a discretion to depart from the statutory order of addresses.  His honour cited Masnec v R [1962] Tas SR 254 at 268, Buck v R [1983] WAR 372 at 378, and Carter v R (1997) 19 WAR 8 at 44 – 46. I add to these authorities the joint decision of Neasey and Cosgrove JJ at 12 in Smith v R 51/1984, DPP; Re Y (1998) 19 WAR 47 at 62 and Musarri v R [2006] WASCA 92 [152].

1. In this case, the accused adduced evidence by tendering the witness statement of a witness.  Counsel for the accused has applied to me to exercise my discretion to depart from the statutory order of addresses and call on the prosecutor to address first.  The circumstance that precipitated this application is that, in the course of the evidence of an eye witness called by the prosecution, counsel for the accused read to the witness about eight of ten lines of a statement she had made to police a little over an hour after the incident in question.  In substance, the witness acknowledged making the statement and did not challenge its accuracy, save for saying that she did not remember mentioning the names of two of the youths named in her statement.  Neither in her statement, nor in her evidence, did she suggest that the accused was involved in the incident in question.  She said that she could not remember some aspects of her statement, but that it was the truth.  Following this evidence, counsel for the accused tendered the witness' statement.  It is not in dispute that in doing so, counsel for the accused overlooked the impact of taking this course on the order of addresses.  I should mention that the prosecutor had not called on counsel for the accused to tender the statement.  Had she done so, and had counsel for the accused resisted, for the reasons that follow, I would have exercised my discretion not to require the accused to put the document into evidence.  As to this see the Evidence Act 2001, s45(3), Wood v Desmond (1961) 78 NSWLR 65 at 66 and 67, and R v Lawless [1974] VR 398 at 404 – 405.

1. In DPP; Re Y (supra), the Court of Criminal Appeal (Western Australia), said at 62, with regard to the discretion to vary the order of addresses, that it is a discretion to be exercised, having regard to the extent and significance of the evidence actually adduced by the accused, and having regard to the fairness of the trial. If the evidence adduced by an accused person is of significance, then the general rule is that the judge should not vary what has been laid down by the statute. In Musarri v R (supra), the Court of Criminal Appeal (Western Australia), at [152] confirmed a trial judge's discretion to vary the order of addresses, and at [154] appeared to accept the view of the trial judge that an accused would not be held to account for his or her counsel's inadvertent or inconsequential tender of evidence.

1. It is my invariable practice to provide a transcript of the evidence to the jury.  That being so, the tender of the witness' statement will have very little influence on the impact of her evidence.  Albeit that a transcript of the evidence is no more than an aid to memory, the reality is that eight of the ten lines of the relevant portion of the witness' statement are set out in the transcript.  Accordingly, the tender of the statement can be said not only to have been inadvertent, but also to be largely inconsequential. 

1. To my mind, however, in the most unusual circumstances of this case, the most compelling reason to exercise the discretion to vary the order of addresses in favour of the accused, is fairness.  In this case, consistent with her obligations, the prosecutor has led evidence from a number of witnesses, much of which is quite contradictory.  From the point of view of the fairness of the trial, it seems to me crucial that before the address of counsel for the accused, the accused and the jury should have the benefit of hearing how it is that the prosecution puts its case, and the prosecution identifies the evidence upon which it relies, and that which it invites the jury to disregard.

1. Fairness requires that the prosecutor address first and I so direct.