The State of Western Australia v JWRL (a child) [No 3]

[2010] WASC 294

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JWRL (a child) [No 3] [2010] WASC 294

CORAM:   EM HEENAN J

HEARD:   22 OCTOBER 2009

DELIVERED          :   23 OCTOBER 2009

PUBLISHED           :  25 OCTOBER 2010

FILE NO/S:   INS 93 of 2009

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

JWRL (a child)
Accused

Catchwords:

Criminal Law - Evidence - Documents - The practice adopted in R v Orton (1922) VRL - Ruling as to use of documentary evidence

Legislation:

Nil

Result:

Ruling that the unidentified document may be shown to the witness, but not at this stage read from, and for the witness then to be asked if she still maintained her earlier testimony

Category:    B

Representation:

Counsel:

Prosecution                  :     Mr G J Huggins and Mr S B Sandover

Accused:     Mr R W Richardson

Solicitors:

Prosecution                  :     Director of Public Prosecutions (WA)

Accused:     Lavan Legal

Case(s) referred to in judgment(s):

Government Employees Superannuation Board v Martin (1997) 19 WAR 224

R v Hawes (1994) 35 NSWLR 294

R v Orton [1922] VLR 469; (1922) 28 ALR 193

1. EM HEENAN J:  Yesterday, in the late afternoon, a point of evidence cropped up which caused me to send out the jury early and give counsel an opportunity to make submissions.  What was foreshadowed was a particular approach in the cross‑examination of the witness, SW, by counsel for the accused adopting what is known as the Orton procedure, taking its name after a decision of the Supreme Court of Victoria in the case of R v Orton [1922] VLR 469; (1922) 28 ALR 193.

2. To put it in its context, SW had been asked some questions about conversations which had taken place at her home late on the evening of 31 October 2008 after the accused, JWRL, arrived back at her home, apparently shaken and out of sorts, and made remarks about being apprehensive that he may have hit somebody too hard and may even have killed him, in the context where he was telling SW and others that he had been mugged and the details of the mugging.

3. In the process of the cross‑examination, counsel for the accused asked whether she heard JWRL say, or others say, certain words and phrases.  She agreed that certain particular words and phrases or words to that effect had been said, but she said certain other phrases or words which were put to her she had not heard or had no recollection of hearing, or did not think she had heard.

4. Shortly after that point, the cross‑examining counsel sought to put an unidentified document to the witness and to ask her to read certain paragraphs in it and then to say whether or not she still maintained that she had not heard the particular words or phrases.  It was at that point that counsel for the prosecution asked to see the document which was to be put before the witness and made his objection to the course proposed.  The jury were then sent out.

5. The document proposed to be put to the witness is a statement made by another person, IJC, to the police on 4 November 2008 for the purposes of these proceedings.  In it, IJC, who is acknowledged to be another member of the group at SW's home there with in the small number of people who were present when JWRL returned and gave his account of the mugging, said that certain words were said, that he heard them being said and that these were the words which have been put to SW earlier in her cross‑examination.

6. The particular words are the ones which counsel for the accused put to SW and which she said either were not said, or that she could not remember them being said.  The purpose was to ask her to read the document silently, or that particular part of it, and then to say whether or not she adhered to her earlier testimony.

7. The basis for the objection is that the proposed document is not a document of the witness, it is a statement prepared by a witness who may yet be called in these proceedings, whether it is accurate or not cannot be known, and that this is unfair and should not be permitted.

8. I have had the benefit of counsel's submissions yesterday and this morning and some research overnight.  The situation which is proposed is squarely within the Orton principle and has been followed on many occasions in other courts in Australia over the years. That is not to say that it is universally accepted or has not been severely criticised. It has been criticised and its authenticity has been doubted by eminent commentators, including Mr McHugh JA, as his Honour then was, a judge of the Court of Appeal of New South Wales, in a celebrated article in the Australian Bar Review vol 1, March 1985 at page 51.

9. That article has been examined by a number of other leading commentators and the existence of the rule has been recognised.  The authority supporting it has been criticised and said to be open to doubt but, nevertheless, the use of the rule has been recognised as continuing.

10. A recent example of the analysis of the rule is contained in an article in the Australian Law Journal (2009) 83 ALJ 669, 'The Queen's Case' by Mr Ryan SC, where criticisms of the rule are collected and considerations by Law Reform Commissions and others have been discussed but the conclusion there reached is that the rule has survived despite these criticisms.

11. One of the most powerful criticisms is made by Hunt CJ in Common Law in the case of R v Hawes (1994) 35 NSWLR 294 where, because of the special circumstances, the procedure was not permitted by the trial judge. His Honour and the other judges of appeal confirmed that refusal on the appeal. But, upon examination, it is apparent that the methodology sought to be used by counsel in Hawes' case involved an implicit disclosure of the source and origin of the paper that was to be put before the witness and so could thereby have given some implied authenticity to the statement ‑ negating one of the protections in the rule.

12. Nevertheless, Hunt CJ expressed doubt that the authorities relied upon to support the rule ever did so and suggested that the rule was, in any event, unfair.  There have been instances of the rule being applied in this State, one of which is Government Employees Superannuation Board v Martin (1997) 19 WAR 224, a decision of Ipp J. Again, his Honour criticised the rule but, nevertheless, held, and I am quoting now from the headnote on page 228, that:

    A cross‑examiner may hand a document to a witness, ask him or her to read it and then ask whether the witness still adheres to his or her testimony without the cross‑examiner being required to identify the document.  However, the basic fairness of this approach is open to question.

13. It seems that this rule has been part of the law of evidence for a long time and has its severe critics who have advanced powerful reasons for their various criticisms.  Nevertheless, it remains part of the law and so long as it is observed and its limits are enforced, I consider that I am bound to allow the procedure proposed by Mr Richardson to be undertaken.  I will, therefore, allow  the document to be put to the witness, but it must not be identified.