The Queen v Sarah Jane Thomson (No 1)
[2014] ACTSC 62
•26 March 2014
THE QUEEN v SARAH JANE THOMSON (NO 1)
[2014] ACTSC 62 (26 March 2014)
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude evidence – Evidence of attempts by Crown to speak to witness – Whether probative value outweighed by unfair prejudice – Evidence excluded
Evidence Act 2011 (ACT), ss 18, 20, 137
DJF v The Queen [2011] NSW CCA 6
Dyer v The Queen (2002) 210 CLR 285
Jones v Dunkel (1959) 101 CLR 298
Louizos v The Queen (2009) 194 A Crim R 223
Mahmood v Western Australia (2008) 232 CLR 397
Richardson v The Queen (1974) 131 CLR 116
R v Apostilides (1984) 154 CLR 563
R v Armstrong [1998] 4 VR 533
R v Caratti (2000) 157 FLR 241
R v J (No 2) [1998] 3 VR 602
R v Jensen (2009) 23 VR 591
R v Kneebone (1999) 47 NSWLR 450
Shaw v The Queen (1991) 57 A Crim R 425
Svajcer v The Queen (2010) 200 A Crim R 587
Whitehorn v The Queen (1983) 152 CLR 657
EX TEMPORE JUDGMENT
No. SCC 42 of 2012
Judge: Refshauge J
Supreme Court of the ACT
Date: 26 March 2014
IN THE SUPREME COURT OF THE )
) No. SCC 42 of 2012
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
SARAH JANE THOMSON
ORDER
Judge: Refshauge J
Date: 26 March 2014
Place: Canberra
THE COURT ORDERS THAT:
The evidence that the accused’s husband declined to be interviewed by police not be admitted.
The parties have leave to make submissions on the direction to be given to the jury about the fact that the accused’s husband is not called to give evidence.
A somewhat unusual procedural issue has arisen in this criminal trial to which I had to give some consideration. Having done so, I have come to a conclusion which seems to be consistent with principle and authority.
The issue has arisen as follows.
In 2010, a young girl, the complainant, told her mother that “Sarah used to make me and [a friend] take photos of her naked”. Sarah was Sarah Jane Thomson, the next door neighbour of the complainant and her mother, and is the accused in these proceedings.
As a result of this disclosure, a search warrant was executed on the home of Ms Thomson and, inter alia, her laptop computer seized. A search by the Digital Forensics staff of the Australian Federal Police retrieved a number of photographs from the computer, some of which depicted Ms Thomson naked and in some explicit sexual poses.
As a result, Ms Thomson was charged with three counts of committing an act of indecency in the presence of the complainant, then a child under the age of ten years. She has pleaded not guilty to the charges.
During the trial, a sound recording of the execution of the search warrant was played. Unfortunately, the use of the recording device for that purpose at the scene of the execution of the warrant suffered from some significant problems so that, initially, it was very difficult to hear what Ms Thomson had to say. There was also considerable interference from time to time which appeared to come from the rustling of paper too close to the recording device.
Nevertheless, some expert transcription by Auscript Australasia Pty Ltd managed to identify a good deal of what was said.
In order to put the relevant conversation in appropriate context, however, it is necessary to give a little background to the trial.
The allegations that founded the case for the prosecution are that the complainant was prevailed upon by Ms Thomson to take photographs of Ms Thomson naked and in the sexually explicit poses seen in the seized photographs. The act of posing in this way was said to be the act of indecency, proved by the photographs. That the indecent acts were committed in the presence of the young complainant was said to be proved by the complainant taking the photographs.
Ms Thomson, by her defence, challenges that. As the trial has not concluded, the full nature of her defence cannot be precisely identified, but it appears that she says that although the complainant took some photographs, she did not take any of the explicit photographs showing poses that might be regarded as indecent in the presence of the complainant.
During the execution of the search warrant on her home, Ms Thomson was cautioned in the standard form by the Informant Police Officer, but nevertheless made certain statements to police, some of which could be said to be exculpatory.
She said that there would be on her computer some photographs, she said five or six, of her in the bath, but underwater and completely covered, surrounded by rose petals and lavender. These, she said, had been taken by the complainant.
She said she would fill the bathtub with water and bubbles and sprinkle the water with rose petals. She would close the bathroom door, get undressed and get into the bath. She would then tell the complainant that she was ready for her to come in and take the photographs.
She said that there were also a fair few other photographs of herself which she herself had taken, not in the complainant’s presence, and which she described as “woman shots”, “pretty poses”, with scarves on, not wearing anything, but sometimes earrings.
As to these photographs, she said that she had taken them and her husband, Ben, had taken a few of her also. She said that the more “graphic” ones would have been taken by Ben. When she took the photos, she would use a timer to do so.
The Crown have now advised me that it is not proposing to call Ms Thomson’s husband, Ben. Mr A Hopkins, who appears for Ms Thomson, has also stated that he is not to be called in the defence case. I was advised that he had been sitting in Court during the trial.
The Crown proposes to ask the Informant some questions about the circumstances in which the decision not to call Mr Thomson was made. In particular, I was advised that it is expected that the evidence will be that he was contacted by police but declined to be interviewed by them. I do not know whether he has been contacted by the Crown prosecutor and, if so, whether he has declined to attend a conference with her.
Nevertheless, I was frankly told that it was proposed to adduce this evidence to negate an inference that the Crown had not sought to adduce all the relevant evidence it was under a duty to adduce. As Dawson J said in Whitehorn v The Queen (1983) 152 CLR 657 at 674
All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief.
Gibbs CJ and Brennan J generally agreed with Dawson J and, expressly, his Honour’s conclusion, though they did not consider one issue not presently relevant.
Mr Hopkins, however, opposed the adducing of the evidence, which he submits is not only irrelevant but because the probative value of such evidence would be outweighed by the danger of unfair prejudice it was therefore inadmissible by reasons of the prohibition in s 137 of the Evidence Act 2011 (ACT).
To permit such evidence, he submitted, would invite the jury to speculate that Ms Thomson should have called her husband to give evidence and to reason that she is not calling him because he cannot give evidence that will support her defence.
There is no doubt that the Crown decides how a prosecution will be conducted and, in particular, which witnesses can be called. See Richardson v The Queen (1974) 131 CLR 116 at 121; R v Apostilides (1984) 154 CLR 563 at 575. This discretionary power is not one in which the Court plays any part.
Where, however, the Court considers that a witness not called by the Crown should be called, it may raise the matter with the prosecutor and suggest that the prosecutor should reconsider the position. See R v Jensen (2009) 23 VR 591 at 599-600; [61].
As the High Court noted in R v Apostilides at 575, the failure of the prosecution can constitute a miscarriage of justice, but only if that can be sustained when viewed against the conduct of the trial as a whole. That will not always, of course, be the case, as was held in Svajcer v The Queen (2010) 200 A Crim R 587 at 595; [34].
It is also clear that the prosecutor must give a proper and careful consideration of whether to call a witness or not. Again, as was said in R v Apostilides at 576
A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.
The identifiable circumstances may be required to be proved in evidence.
Those identifiable circumstances must, however, be more than that a witness is likely to give evidence that is not consistent with the Crown case, as mentioned in the citation from Whitehorn v The Queen that I have quoted above (at [18]). Similarly, it is not sufficient to identify a witness as simply “in the defence camp”, as in R v Armstrong [1998] 4 VR 533. Further, it is not sufficient merely that the witness has made inconsistent statements, as in Shaw v The Queen (1991) 57 A Crim R 425.
In this case, the Crown prosecutor relied on the fact that Mr Thomson had declined to be interviewed by police. As a result, she submitted, she was not in a position to assess whether he was a reliable witness.
There is no doubt that this has been a relevant matter identified in the authorities. For example, in R v Kneebone (1999) 47 NSWLR 450 at 462; [60], reference is made to the circumstances where the witness was not willing to speak to police.
That, however, may not be sufficient by itself. It is usually required for a prosecutor to come to the view that a witness is so unreliable or unwilling to tell the truth that he or she should not be called that the prosecutor will have interviewed the witness. See Shaw at 435; R v Apostilides; R v Kneebone.
In this case, of course, that may not have been possible because Mr Thomson would not speak to police. That is not the end of it, however. In the first place, it is not the role of the police to make the decision as to whether a witness should be called or not; that is the responsibility alone of the prosecutor, often described as a “lonely” duty. Thus, the failure of a prosecutor to speak to, or at least to attempt to speak to, the witness will not in and of itself provide the proper material on which a prosecutor can make the relevant decision.
Further, there are means by which a witness can be required to give the evidence. At committal, a witness who declines to speak to police can be called and asked questions which may give a prosecutor the information necessary to make the necessary decision. Alternatively, a witness can be examined on a voir dire for the same purpose. See R v J (No 2) [1998] 3 VR 602 at 621. That was a course of action not taken here.
There are difficulties with this, of course. In this case, Mr Thomson was a competent but not compellable witness if he chose to object to giving evidence and if the Court found that there was a likelihood of harm to the witness or to his relationship with the accused and the nature and extent of the harm outweighs the desirability of giving evidence: s 18 of the Evidence Act 2011 (ACT). That is similar to the position to the suggested claim of privilege from testifying on the grounds of self-incrimination that was mentioned in R v J (No 2) at 623.
This case, however, was somewhat different, as it was not a case where the accused was complaining that the Crown had declined to call a witness that she wanted called. Neither party seemed to want Mr Thomson called.
The challenge was that the evidence was likely to cause the jury to reason in an unfairly prejudicial way, that is, to reason that the Crown was not calling an obviously relevant witness, he having been named by the accused. If the Crown was permitted to explain why it was not calling him, then this reasoning would focus on why the accused was not calling him.
That, of course, would risk the jury engaging in a version of the reasoning identified in Jones v Dunkel (1959) 101 CLR 298. Such reasoning is not to be applied to the accused’s case. See Dyer v The Queen (2002) 210 CLR 285 at 291; [5]; 328; [121].
That also applies to the Crown case, as was said in Dyer v The Queen at 291; [6].
That approach was reinforced by the High Court in Mahmood v Western Australia (2008) 232 CLR 397. See Louizos v The Queen (2009) 194 A Crim R 223 at 237; [56].
It seems to me that the probative value of the evidence is slight. It is clear that no inference can be drawn against the Crown. The evidence was, the Crown fairly conceded, sought to be adduced to show that the Crown had discharged its duty in relation to the calling of relevant witnesses. That concern, admissible and important though it may be, does not seem to me to be of particular probative value in this particular case.
In my view, the queries of a court to the prosecution as to why a witness is not being called, should take place in the absence of the jury. It would be quite inappropriate to receive in the presence and hearing of the jury the opinion of the Crown prosecutor that a witness is unreliable and for that opinion to be accepted by a judge as sufficient to answer a request by the accused for that witness to be called, especially when that person may later be called as a witness by the accused or, in an exceptional case, by the court.
This seems to me to be the inevitable inference from what Gaudron and Hayne JJ said in Dyer v The Queen at 295; [17]
The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person.
Any evidence that is required to support the decision of the Crown prosecutor would be given on the voir dire.
I have had the considerable advantage of having my attention drawn by the Crown prosecutor, after submissions had been concluded, to the decision of the New South Wales court of Criminal Appeal in DJF v The Queen [2011] NSW CCA 6. That was appropriate and of great assistance.
In that case, the Court heard an appeal against the conviction of the appellant of four counts of sexual intercourse with a child under the age of ten years. The trial was short, the evidence all being given on the first day of the trial.
The appellant’s spouse did not give evidence. The Crown prosecutor said in addressing the jury
You’ve heard the evidence from the officer that there’s no statement [having] been obtained from ... the wife of the accused who you may have ... expected would have been called, considering the incident which is alleged to have occurred in the spa.
The appellant appealed on the ground, inter alia, that this resulted in a miscarriage of justice.
As here, counsel for the Crown submitted that the evidence that had been elicited from the police officer, to which reference was made, was “fairly standard evidence led in criminal trial by Crown prosecutors to explain why a witness had not been called by the Crown” (at [31]). This was partly based on the Guidelines issued by the Director of Public Prosecutions in that State which require service on the defence of any statements made by a witness intended to be called by the Crown. It was asserted that, as there had been no statements given by the accused’s wife, no statement could be provided and so she could not be called.
The Crown prosecutor also submitted that the evidence was elicited to respond to a potential submission that an inference of the kind inferred to in Jones v Dunkel may be made against the Crown.
Adams J dismissed both submissions. Although the other members of the Court, Giles JA and R A Hulme J, agreed with his Honour’s orders, it was for somewhat different reasons. Nevertheless, his Honour’s reasons are relevant to the issues.
As to the first argument, his Honour made two points. In the first place, his Honour pointed out that there was no evidence that the refusal of the appellant’s wife to provide a statement was the reason for not calling her. As his Honour said (at [32]):
There is no rule, either of law or practice, that would prevent the Crown from calling a witness from whom a statement had not been obtained.
While not quite in the terms in which I have put it above (at [31]-[32]), it seems to me that his Honour is essentially making the same point, that the mere failure of a witness to give a statement to the police or the prosecution may be part of the process leading the Crown prosecutor to decide that a relevant witness, especially one directly relevant to the facts in issue, such as an eye-witness, is not to be called, but more is required to discharge the obligation.
As to the other argument, his Honour pointed out, as did Giles JA, with whom R A Hulme J agreed, the comment was likely to breach s 20 of the Evidence Act, which prohibits a prosecutor from making a comment on the failure of the spouse of an accused person to give evidence.
Conclusion
While the issue for me to decide is different from that decided in DJF v The Queen, it has helpfully confirmed some of the approach I have divined from principle and authority.
This is a somewhat different situation from the usual issue where the Crown does not call an arguably relevant witness. Here, neither party proposed to call Mr Thomson and neither party suggested that the other party should call him. It seems to me that, for the reasons set out in s 20 of the Evidence Act and because of the prohibition of the suggestion that a Jones v Dunkel inference should be drawn against the accused’s failure to do so, at least other than in exceptional circumstances, if at all, the evidence proposed to be called by the Crown in this case, would risk quite significant unfair prejudice to the accused.
In any event, as I have been assured that the accused will not complain of the prosecution failure to call Mr Thomson nor ask that a Jones v Dunkel direction be drawn against the Crown, the evidence has little, if any, probative value.
Accordingly, since the unfair prejudice substantially outweighs the probative value of the evidence, s 137 of the Evidence Act requires me to prohibit it being adduced. I will so order.
It does, however, require that perhaps I should give a stronger than usual direction to the jury about the fact that the jury must decide on, and only on, the evidence, that they should recognise that not all witnesses who could be called are called and that they should not speculate on what such uncalled witnesses might say.
A helpful basis for such a direction is to be found in R v Caratti (2000) 157 FLR 241 at 294-5. Adapting that to this circumstance I propose, subject to submissions from counsel for the parties, that a direction along the following lines be given to the jury:
I would wish you to be careful not to speculate about matters which are not in evidence, about matters of which indeed we know nothing.
It seems to me that included in that is what evidence might have been given by persons who may have been but have not been called to give evidence and of course I suppose one need not go any further in thinking of a person in that situation than Mr Thomson, who was mentioned by Ms Thomson during the search of her house, you may have thought might have had some relevant evidence to give in relation to the matter.
A short and simple matter is that Mr Thomson has not been called. He is not a witness in the case. What he would have said had he been called is something of which we know nothing and it would be entirely speculative and entirely unhelpful for you to be worrying yourselves about those matters.
You just simply do not have the evidence of that individual and you should not worry yourselves about why that might be so or what he might have said if he was here. The same goes for any of the witnesses who have not been brought to the witness box to give evidence before you. Their evidence is simply not here. It is not available.
The one thing I want to add to all of that is that if you thought that there might have been people whose evidence might have been helpful but have not been called, it would be a very wrong thing to draw any adverse inference against any party in these proceedings, whether that be the Crown or the accused, from the absence of the person.
I am sure you will see as soon as I say it how unfair that would be when you do not know what the facts are and you do not know what the person might have said, so be careful about that. Just ignore all that. Focus and concentrate upon the evidence itself, and that's the material.
I will hear submissions of the parties on the terms of the direction.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 August 2014
Counsel for the Crown: Ms S Gul
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr A Hopkins
Solicitor for the defendant: Pappas J. – Attorney
Date of hearing: 26 March 2014
Date of judgment: 26 March 2014
2
11
1