The Queen v O'Brien
[2000] NZCA 122
•11 July 2000
| NO PUBLICATION UNTIL AFTER VERDICT AT RETRIAL | |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA9/00 |
THE QUEEN
V
GRAEME PATRICK O'BRIEN
| Hearing: | 29 May 2000 (at Auckland) |
| Coram: | Tipping J Williams J Goddard J |
| Appearances: | J R Billington QC and M Hardy-Jones for Appellant J C Pike for Crown |
| Judgment: | 11 July 2000 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Introduction
Graeme Patrick O'Brien appeals against his convictions for aggravated robbery and receiving, and against the sentences totalling 8 years imprisonment which resulted. The primary conviction issue concerns a witness whom the trial Judge declared hostile. There are related issues to which we will come later. The appellant contends that the Crown should not have called the witness; that the Judge should not have declared him hostile; and that the Crown's cross-examination of him was inappropriate. To put these contentions into context, it is necessary to examine the background against which they arise.
Background circumstances
On 5 September 1998 a security guard was robbed at premises in Blenheim. The robbers were Mark Alexander and John Flavell. They pleaded guilty to aggravated robbery and other offences, and were sentenced ultimately (earlier sentences having been reduced on appeal) to 5 years and 4 years imprisonment respectively. Both made statements to the police implicating the appellant and another man called Turner in the robbery. The appellant's part was said to include the provision of bolt cutters, balaclavas and shotgun shells, together with the use of his house to help store and count the stolen money, some $96,000.
Both Mr Alexander and Mr Flavell gave evidence at depositions implicating the appellant along the lines of their earlier statements. At trial Mr Flavell gave evidence first, and came up to brief. Mr Alexander gave evidence immediately after Mr Flavell, but he did not come up to brief. After some introductory evidence he denied having any discussions with anyone other than Mr Flavell about the proposed robbery. He denied asking anyone else to take part. Clearly he was now giving evidence contrary to what he had said at depositions.
The Crown applied to have him declared hostile. The Judge saw counsel in Chambers and, in a ruling of which there is no record, gave leave to the Crown to cross-examine Mr Alexander. The cross-examination which then ensued covers 14 pages of the transcript. It was extended and detailed and consisted substantially, at least in its initial stages, of Crown counsel simply asking Mr Alexander whether he had made various statements in his deposition evidence. Mr Alexander accepted that he had made those statements, but added right at the outset of this detailed questioning, that when he gave evidence at depositions he was not telling the truth. After about 10 minutes of this line of questioning, the Judge again saw counsel in Chambers, seemingly because he was concerned at the line of cross-examination being undertaken by the Crown. No record exists of what was said in Chambers or of any ruling or direction which the Judge then gave.
The tenor of the Crown's cross-examination then changed to some extent with counsel asking from time to time whether what Mr Alexander had said at depositions in identified respects was true. He said it was not. The Crown's cross-examination of Mr Alexander lasted altogether some 80 minutes and did not result in Mr Alexander adopting any of his deposition evidence as true. Against that background we turn to examine the submissions made in support of the appeal.
Should the Crown have called Mr Alexander?
Mr Billington argued that in the light of the Crown's knowledge of what Mr Alexander was likely to say in evidence at the trial, the Crown should not have called him. On this issue we received affidavits from leading and junior counsel for the Crown at the trial, and from junior counsel for the defence. Affidavits were also filed from Mr Flavell and Mr Alexander. None of these witnesses were called for cross-examination. We were invited to draw such conclusions from this evidence as we thought appropriate. There were certain aspects of primary fact upon which it would have been difficult for us to reach firm conclusions without cross-examination, but, in the result, the case can be decided without this being a problem.
Before examining the circumstances in which Mr Alexander came to give evidence at the trial, we will consider the principles which apply to the calling by the Crown of a witness who, it is thought, may prove to be hostile. A particular problem can arise with potentially hostile witnesses who are accomplices or co-offenders. They are usually regarded as being in a category of their own because of the dangers and difficulties which apply to the evidence of such witnesses. Mr Alexander in this case was of course an accomplice and co-offender. In R v Allen (1989) 5 CRNZ 316, 318 (CA) Somers J, writing for the Court, said:
In most cases the Court [sc the Crown] when calling an accomplice will not know in advance whether he or she will be hostile to its case. It would no doubt be improper for the Crown to call a witness known to be intractably hostile for the sole purpose of putting to the witness a series of allegations about the accused: see eg. R v Thompson [1964] QWN 61-2; and cf R v Halligan [1973] 2 NZLR 158. That was not suggested here where the Crown had reason to suppose the witnesses would give evidence. The Judge was right to allow the evidence to be given.
In anticipation of a later point, we note that this observation in Allen does not profess to be an exhaustive statement of the circumstances in which it would be improper for the Crown to call a witness, and in particular an accomplice or co-offender.
In R v Schriek (1996) 14 CRNZ 449, 455 (CA) Eichelbaum CJ, in the course of delivering the judgment of the Court, put the point in this way:
On the first issue, the principle is that the Crown should not call a witness known to be hostile for the purpose of getting otherwise inadmissible hearsay before the Court, see Blewitt v R (1988) 80 ALJR 503 and R v Allen (1989) 5 CRNZ 316. In R v Lawless and Basford (1993) 98 Cr App R 342, 349 the Court of Appeal said that in the ordinary case the Crown ought not to call a co-accused unless they had a clear indication from that person that he was willing to give evidence in favour of the prosecution.
The problem is that if a witness is examined on a previous statement, unless the witness adopts the previous statement as true when giving evidence before the jury, the previous statement is not evidence of the facts contained in it. The judgment of the High Court of Australia in Blewitt at 355 speaks of the difficulty being that a "prejudicial prior inconsistent statement" is placed before the jury.
Mr Pike argued that the statement of the English Court of Appeal in Lawless and Basford cited in Schriek was too wide, certainly as regards witnesses generally, and also as regards accomplices and co-offenders. In the present case we are required to address directly only the latter type of witness. In support of his argument Mr Pike drew our attention to a helpful article by Roderick Munday, "Calling a Hostile Witness" [1989] Crim.L.R.866. We have considered the author's views and examined some of the cases which he cites. It is evident that in Lawless and Basford the Court was simply adopting the approach laid down in earlier cases, including Moran (1985) 81 Cr.App.R.51, and Sinclair, The Times, April 18, 1989. In Moran, Lawton LJ in giving the judgment of the Court allowing the appeal said at 52:
In our opinion the prosecution should think very hard indeed before they call a fellow criminal to give evidence in the kind of situation which arose in this case.
And in Sinclair, after citing Moran with approval, O'Connor LJ for the Court said, in a passage which includes that referred to in Schriek:
So in principle the prosecution must be very careful before they decide to call an accomplice who is a participator in the crime of which the defendant is accused and for which he is standing trial. It is undesirable to try and say what must be done in every case because circumstances are so infinitely variable. But in the ordinary case it seems to us that the Crown ought not to call a co-accused who has been sentenced to give evidence against another accused who is being tried unless they have a clear indication from that person that he is willing to give evidence in favour of the Crown.
Mr Pike also referred us to the earlier English decision in Mann (1972) 56 Cr App 750, not referred to in Lawless and Basford probably because Mann's case involved a witness who was not an accomplice. In that context Lord Widgery CJ said at 756:
We are quite satisfied that in ordinary circumstances such as this, it is open to the prosecution, if it thinks fit, not to treat the witness as hostile before the magistrates, but to allow him to come to the trial and see what happens then. It is not by any means impossible that at the trial itself he will go back to the original statement. Indeed, there may have been pressure affecting him before the magistrates' court which may have relaxed by the time of the trial. Since the pursuit of everybody is to arrive at the truth of the matter, it is permissible in this case and cases like this for the prosecution to do exactly what they did, namely, to leave this matter to the trial and see how the witness's evidence then comes out. If he still is hostile, then it is open to the prosecution to ask the learned judge for permission so to treat him.
Mann's case involved the converse of the present, a witness hostile at depositions. Despite the differences Mr Pike argued that it supported what the Crown had done in the present case.
The course of events leading up to the calling of Mr Alexander can appropriately be examined through the eyes of the Crown whose conduct in calling him is in issue. A few days after Messrs Alexander and Flavell were arrested, both men gave video interviews in which they implicated the appellant. At this time they were in receipt of independent legal advice, and agreed to give evidence for the Crown against the appellant and Mr Turner. Prior to depositions, leading counsel for the Crown was advised by the police that both men were reluctant to give evidence and had declined to sign briefs of evidence. Their reluctance was said to be based on concerns for their safety as a result of being branded as "narks". Counsel saw them before the depositions hearing. They each made it clear they would follow the same course, ie. if one gave evidence the other would too, and vice versa.
At depositions Mr Alexander gave evidence first. He came up fully to brief and showed no reluctance. The same applied to Mr Flavell whose evidence followed. The appellant and Mr Turner were committed for trial. Counsel expected both Mr Alexander and Mr Flavell to give evidence for the Crown at trial, and had no reason at that stage to doubt the truthfulness of their evidence. In the light of the assistance they had each given, both men had their sentences for the aggravated robbery reduced on appeal, see CA16/99, judgment 10 May 1999.
The O'Brien trial was scheduled to start in the District Court at Blenheim on Monday 6 December 1999. Unknown to counsel for the Crown, Mr Alexander had written to the appellant's counsel, Mr Hardy-Jones on 13 October 1999. The general tenor of the letter was an apology for giving evidence against the appellant at depositions. Mr Alexander suggested he had not been speaking the truth and the police had improperly taken advantage of his poor mental and physical state. He said he was "taking the appropriate action and remedying what would have been an injustice, should any previous evidence by me have been used in a prosecution in a court of law". The appropriate action seemed to have been a letter written by Mr Alexander to Detective Sergeant Hamilton, the officer in charge of the case, a copy of which accompanied the letter to Mr Hardy-Jones. The original did not, however, reach the detective sergeant and may, indeed, never have been intended to do so. In the letter Mr Alexander said he was enclosing a copy of his letter to Mr Hardy-Jones. The letter to the detective sergeant included a request that Mr Alexander not be called for the Crown.
We mention these matters, although none of them were known to the Crown, in order to give the background to one of Mr Pike's submissions. He contended that all along Mr Alexander was setting out to dupe the police and the Crown into calling him and giving him an opportunity of contradicting Mr Flavell and thus undermining the Crown case in front of the jury. Mr Pike described this as "a cunning plan". We find ourselves unable to conclude that this was Mr Alexander's primary motivation. Even if it had been, we do not consider the appellant was shown to have been implicated in such a way as to deprive him of the ability to complain about what occurred.
We return to how matters developed from the Crown's perspective. On 28 November 1999 Detective Sergeant Hamilton visited Messrs Alexander and Flavell at Rolleston Prison. Mr Alexander indicated he did not intend to give evidence. The detective sergeant returned the next day. Mr Alexander maintained his stance that he would not give the evidence he had given at depositions. He said he would claim to have lied at depositions. He was concerned at being branded a "nark". To say nothing when called would not be enough - he would have to go back on his previous evidence and say it had been fabricated. Mr Alexander added, however, that what he had earlier said was indeed the truth.
On being made aware of these developments, leading counsel for the Crown naturally became concerned and arranged to interview Messrs Alexander and Flavell separately on the evening before the trial commenced. Junior counsel for the Crown was present also and took some notes. Both were fully aware an issue about a hostile witness had arisen. They were aware of the Crown's responsibility not to call such a witness simply to get a previous inconsistent statement before the jury. Counsel spoke to Mr Alexander first. He said he was not going to give evidence as it was not "conducive to self preservation". He denied having received any specific threats but said he had been asked by a prison officer whether he was going to give evidence. Counsel asked Mr Alexander whether his deposition evidence was true. He replied he would not comment either way on that issue. Mr Alexander then mentioned his having sent a letter to Mr Hardy-Jones accompanied by a copy of a letter to Detective Sergeant Hamilton. Counsel told him neither the police nor the Crown had received any such communication.
Mr Alexander went on to say that ultimately his decision whether to give evidence depended on whether Mr Flavell gave evidence; and if he did give evidence he had no confirmed plan of what he would say. Counsel then left Mr Alexander and spoke to Mr Flavell. He confirmed he would give evidence according to his deposition. Counsel returned to Mr Alexander who was then asked to confirm his position in writing. He refused but said if he gave evidence it would be the truth, albeit he declined to confirm that what he had said at depositions was the truth. A detective who had been present throughout was asked by counsel to caution Mr Alexander about perjury, prior to counsel asking Mr Alexander directly whether if he did give evidence it would be the truth. We infer an equivocal answer was given because counsel deposed that at no stage did Mr Alexander say that he would lie at trial or that he had lied at depositions. Counsel indicated that if Mr Alexander had said either of those things, he would not have been called to give evidence. Counsel believed Mr Alexander knew this, and was keeping his options open until the very last minute after he had been called and had gone into the witness box.
Faced with this difficult situation, counsel explained the view which had been formed in this way:
32. After a full consideration of the matter I formed the view that while there was a risk that Alexander would give evidence falsely stating that his deposition was fabricated in all probability he would give evidence in conformity with his deposition. I formed this view because:
32.1 It seemed to me his reluctance to give evidence was not the product of any animosity against the Crown but was a concern about his safety. That is a common feature of witnesses called by the Crown who give evidence against criminal acquaintances;
32.2 He had told Detective Sergeant Hamilton that what he said at depositions was true;
32.3 If Flavell gave evidence in accordance with what he said at depositions (which he said he would do and which he did so) Alexander, who said that he had no confirmed plan of evidence, would do the same as he said it depended on Flavell and this was consistent with their position all the way along, either both gave evidence or neither did;
32.4 He would not say that his deposition was false (accepting he had said the opposite to Detective Sergeant Hamilton) and he told me that if he was called he would tell the truth. I believe he knew full well that I would not call him if he said he would lie or even "I might";
32.5 While he was clearly unwilling to disclose his position to me (I felt in a way he was still playing games with the Crown much in the same way as he did before depositions, keep her guessing will I, won't I) I believed, because he gave evidence as he said he would on oath at depositions, that when it came down to it at trial, despite all his pre-trial antics he would do the same;
32.6 The only unequivocal statement I had by Alexander was that his deposition evidence was true. Accordingly if, as he told me he would, he gave true evidence at trial it would be consistent with what he had said at depositions.
We must now determine the correct approach to the Crown's responsibilities in a situation such as the present. The authorities mentioned are not inconsistent in their statements of principle in relation to accomplices. They range from the non exhaustive statement in Allen, where the duty not to call was said to arise in a case of intractable hostility, to what was said in Lawless and Basford, cited with apparent approval in Schriek. There the duty was said to be not to call unless there was a clear indication that the accomplice/co-offender was willing to give evidence for the Crown. It is important to keep in mind the distinction between whether to call a witness and how the Crown should proceed if the witness appears hostile when called. If that happens the Crown is generally regarded as having no absolute obligation to seek leave to cross-examine the hostile witness (but see R v Fraser (1956) 40 Cr App R 160). Nor of course does it follow that the Judge will always give leave. We recognise that if the Crown calls a witness who proves hostile, not to seek a hostility ruling and simply to leave the witness to answer questions from the defence will usually provide a free run to the defence to elicit material damaging to the Crown's case. If leave is sought, all material circumstances known to the Crown concerning the background to the witness appearing hostile should be placed before the Judge to assist in the exercise of the discretion.
Having reviewed the authorities and the submissions of counsel, we consider the following general guidance can be given on how the Crown should exercise its discretion and its responsibilities in this area. The Crown should not call any witness if that witness is known to be intractably hostile or likely to give false evidence. Special caution should always be exercised when deciding whether to call an accomplice or a co-offender. If such a witness is known to be unlikely to give evidence favourable to the Crown's case, the witness should not be called. Furthermore, it will ordinarily be unwise to call an accomplice or co-offender unless the Crown is confident that the witness will give favourable evidence. The Crown should bear in mind when making decisions of this kind that under s12C of the Evidence Act 1908, the Judge has to consider giving what used to be the mandatory accomplice warning; and under s5(7), if a witness of the kind there mentioned is to be charged, the witness should not be called until after the charge has been heard and the person has been dealt with by the Court. Circumstances are of such infinite variety that cases may arise in which a different approach is appropriate but if there is to be a departure from these guidelines it would have to be for good reason. The approach outlined is not in conflict with the Crown's ordinary duty to call all material witnesses. That has never been an absolute proposition. The Crown should inform the defence of the existence of a witness whom it does not intend to call; and should also inform the defence of the reasons why it does not intend to call the witness.
In the present case Mr Alexander was not known to the Crown to be intractably hostile. Whether he was likely to lie in the witness box was a more difficult question. We consider it was open to the Crown to take the view there was such likelihood but, conversely, we cannot say that the Crown was wrong to call Mr Alexander against this criterion. Mr Alexander's equivocal stance was such that we cannot be satisfied there was such likelihood of Mr Alexander lying in the witness box that he should not have been called at all.
Similar difficulties apply with the third criterion. We consider on balance that when the matter is examined objectively Mr Alexander should have been seen as unlikely to give evidence favourable to the Crown. The Crown could certainly not be confident he would give favourable evidence. His constant concern for his safety, and his seeming determination at times not to give evidence at all, and the uncertainty whether if he gave evidence it would be consistent with his deposition, lead us to the view that the Crown should not have called him, but should have turned him over to the defence. It was a close call and we do not criticise counsel for the decision which was made. What is more, the legal principles were by no means clear cut. Had this point stood alone, isolated from what happened in front of the jury, it is in any event doubtful whether it would have constituted a sufficient ground to allow the appeal. We hope that what we have said will be of assistance to those representing the Crown, if faced with this kind of difficult situation.
The Judge's ruling
There are some procedural matters which should be mentioned before we address the substance of this issue: for a helpful review of appropriate procedures in this field see May - Criminal Evidence 4th ed (1999) paras 23.13-14; pp 529-531. It appears that the Judge saw counsel in Chambers when the Crown applied for leave to cross-examine Mr Alexander and the defence opposed that application. The course adopted was irregular. The jury should have been asked to retire, and the Judge should have heard counsel's submissions in Court in the presence of the accused. A record should have been kept of the Judge's ruling, and of his reasons which could either have been given there and then, or reduced to writing later. As it is, we have no means of knowing on what basis and for what reasons the Judge acceded to the Crown's application. The inconsistency of Mr Alexander's trial evidence with his deposition evidence certainly gave some credence to the application. But whether he was hostile or simply unfavourable to the Crown could hardly have been determined solely on that basis. No question of demeanour is evident from the terms in which Mr Alexander gave evidence leading up to the hostility application. The difference between a hostile witness (or an adverse witness as the United Kingdom legislation now puts it) and an unfavourable witness is described in Phipson on Evidence, Fifteenth Edition (2000) at paragraph 11-58 (page 276) in this way (incorporating citations in footnotes):
(52) Whether a witness is adverse
"Adverse" means "hostile",54 that is, when in the opinion of the judge,55 he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court. He is not adverse in the statutory sense when his testimony merely contradicts his proof or because it is unfavourable to the party calling him.56 A witness who is not compellable but chooses to give evidence may be treated as hostile.57 The Court of Appeal has said that an application to treat a witness as hostile must be made at the instant it is obvious that he is showing unmistakable signs of hostility.58 Such a witness should not usually be questioned in the absence of the jury to determine whether he is hostile.59 The prosecution should only call a co-defendant if they have a clear indication that he is willing to give evidence.60 Thus it would be wrong to call such a witness in order to treat the witness as hostile.
The making of an application to treat a witness as hostile is not limited to examination-in-chief. Where a witness said in chief that he could not remember, but in cross-examination exculpated the defendant, the prosecution were permitted to treat him as hostile.61 In another case an application was successful where the witness first exhibited hostility in re-examination.62
54 Greenough v Eccles (1859) 5 C.B. (N.S.) 786. The witness is described in the specimen direction to the jury suggested by the Judicial Studies Board as a witness who has "changed sides".
55 Which is final: Rice v Howard (1886) 16 Q.B.D. 681; R v Williams (1913) 29 T.L.R. 188; R v Manning [1968] Crim.L.R. 675.
56 Greenough v Eccles (1859) 5 C.B. (N.S.) 786; R v Smith (1909) 2 Cr.App.R.86, 106, per Jelf J, disapproving the decision of Coleridge J at the trial. Cf. R v Little (1883) 15 Cox 319; R v Williams (1913) 8 Cr.App.R.113.
57 R v Pitt [1983] Q.B. 25.
58 R v Pestano [1981] Crim.L.R.397.
59 R v Darby [1989] Crim.L.R.817, CA.
60 R v Sinclair, The Times, April 18, 1989, CA.
61 R v Norton & Driver [1987] Crim.L.R.687. CA.
62 R v Powell [1985] Crim.L.R.592, CA.
The subject is also helpfully discussed in Cross on Evidence, New Zealand Edition (looseleaf) at para 9.48 page 343-2.
The proposition that the witness should not usually be questioned in the absence of the jury to determine whether he is hostile is, as indicated, based on R v Darby [1989] Crim.L.R.817 (CA). It should be noted, however, that in R v Honeyghon & Sayles [1999] Crim.L.R.221 (CA) Darby's case was distinguished and the Court indicated that for the purpose of deciding what the witness was likely to say as regards a prior statement, it was legitimate for the Judge to hear evidence in the absence of the jury; see also Archbold Criminal Pleading, Evidence and Practice (2000) at page 1067; paragraphs 8-94a, 8-95. The point of the Judge hearing such evidence is that in Honeyghon & Sayles the Court of Appeal held that, for the purpose of deciding how to exercise the Court's discretion, the Judge should bear in mind what was likely to happen when the witness is confronted with the previous statement. Regard must be had to the possibility of serious prejudice to the accused if a damaging previous statement is referred to in the presence of the jury but not adopted by the witness.
This is the very issue which arises in the present case. What was suggested in Honeyghon & Sayles is not inconsistent with the approach this Court took in R v Birkby [1994] 2 NZLR 38. There it was said, with reference to Darby, that while it was unusual to hear evidence in the absence of the jury on the question whether a witness should be declared hostile, the procedure to be adopted was essentially for the trial Judge. Earlier practice, which tended to discourage voir dire evidence on hostility issues, should no longer be regarded as inhibiting that course if the Judge considers it would assist the exercise of the Court's discretion. Indeed, as was pointed out in Honeyghon & Sayles, the hearing of appropriate evidence in the absence of the jury may be desirable when considering the necessary balance between the Crown's interests and the interests of the defence, a topic which we will address further in the next section of this judgment. Reference can also be made in this context to the decision of the Court of Appeal in R v Jones (K.M.) [1998] Crim.L.R.579 (CA).
In the absence of reasons for the Judge's decision to declare Mr Alexander hostile, it is difficult to deal satisfactorily with counsel's argument that the Judge's discretion was erroneously exercised. Ordinarily an appellant has to show compelling reasons to upset the exercise of a Judge's discretion to declare a witness hostile: see R v Singe CA27/73, judgment 7 May 1973, Rice v Howard (1886) 16 QBD 681, McLellan v Bowyer (1961) 106 CLR 95, 104, and R v Lawless [1974] VR 398. In any event, even if the discretion was wrongly exercised in this case, that of itself may well not have led to a miscarriage of justice. It is the way the cross-examination proceeded rather than the declaration of hostility as such which poses the real problem. In the light of our conclusions on that point and related points, we do not need to make any final determination whether the Judge's discretion to declare Mr Alexander hostile was erroneously exercised. We simply add that unless the reasons for a hostility ruling are clearly apparent from other sources, the absence of any expressed reasons by the Judge may leave the ruling unnecessarily vulnerable.
The terms of the cross-examination
The statutory foundation for declaring a witness hostile is s10 of the Evidence Act 1908. This section, which is largely declaratory of the common law, provides:
10 PROOF OF CONTRADICTORY STATEMENTS OF WITNESS--
Every witness under cross-examination, and every witness on his examination in chief (if the Judge, being of opinion that the witness is hostile, permits the question), may in any proceeding, civil or criminal, be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and, if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.
It is sometimes assumed that a declaration of hostility entitles the party in whose favour the declaration is made to cross-examine the witness generally. There is, however, no right of general cross-examination following a determination that the witness is hostile. The cross-examination must proceed in terms of s10. A passage from Stephen's Digest of the Law of Evidence, approved in R v Prefas and Pryce (1988) 86 Cr App R 111 is helpful in this respect: see also R v Thompson (1977) 64 Cr App R 96. Stephen states that the Judge may permit the examination of the hostile witness by the party calling him to be conducted in the manner of cross-examination "to the extent to which the Judge considers necessary for the purpose of doing justice". That statement reflects the words of Abbott CJ in Bastin v Carew as cited in Clarke v Saffery (1824) Ry&M 127; 171 ER 966: see also Price v Manning (1889) 42 Ch D 372 (CA). Stephen also helpfully discusses the appropriate ambit of cross-examination under the section.
The purpose behind s10 is to allow the party who calls the hostile witness to do two things, of which the first is usually more likely to be achieved than the second. The first objective is to demonstrate by reference to the earlier inconsistent statement that the witness's present testimony is not to be believed. It is a case where the party calling the witness is entitled to impeach his credit. The second and usually subsidiary objective is to see if the witness will change course and adopt the truth of the earlier statement, thus giving evidence in support of the calling party's case. Historically the hostile witness rule developed as a method of impeaching the credit of the witness, so as to demonstrate that his present testimony was not to be accepted. The possibility that when the previous inconsistent statement was put to the witness he might adopt it, was very much a collateral consequence of the party being able to impeach the witness's credit by putting the earlier inconsistent statement to him.
In Schriek (supra) this Court observed at 453-454 that the entitlement to cross-examine on a previous statement following a hostility ruling was not "in such manner as the Crown thought fit". That was said to be too broad a proposition. Unless further leave is granted the cross-examination must be directed to the previous statement, and it should be allowed only to the extent necessary to do justice: see Stephens Digest as noted in Archbold at para 8-95, p 1067 and Garrow & Turkington Criminal Law Ch. XIII. 9 pp2343/2-2344. That requirement involves achieving a fair balance between the legitimate interests of the Crown, and the prejudice likely to ensue to the accused if reference is made to a previous statement which inculpates the accused but which the witness does not accept to be true. In such circumstances the Judge will of necessity have to direct the jury not to treat as evidence such previous statement which the witness has not adopted as true. If not so adopted the previous statement does not constitute evidence against the accused. On the other hand, the Judge will be entitled to say, and will usually add, that the previous inconsistent statement is material which is relevant to the credibility of the witness in his present testimony. The risk of prejudice is high because the jury's task in making the distinction between evidence of fact and material impeaching credibility is a notoriously difficult one, as is the consequential requirement that the jury make only such use of the previous statement as is proper. In the present case the Judge did his best to bring this out to the jury but we are not satisfied that what he said would necessarily have cured the problems which we will identify. In all cases when a witness has been declared hostile, the Judge should keep a firm hand on the ambit and tenor of such cross-examination as is provided for under s10. The often delicate balance between the interests of the Crown, and undue prejudice to the accused, must be kept constantly in mind.
In the present case it was perfectly obvious quite early in the Crown's cross-examination of Mr Alexander that his denial that others were involved in the robbery was at odds with what he had said at depositions. It was equally obvious that he was not likely to adopt any of his deposition evidence as true. It therefore became inappropriate for the Crown to take Mr Alexander through his previous deposition evidence in the detail which followed. In spite of what the Judge properly said in his summing-up, the risk of prejudice to the accused by improper use of this material was considerable. The position was not helped by Crown counsel's initial approach which was simply to put to Mr Alexander statements which he had made in his deposition evidence. Those statements were put solely for the purpose of asking Mr Alexander whether he had said what was recorded. There was no inquiry on a number of occasions whether Mr Alexander accepted or otherwise the truth of what he had earlier said. There is a clear analogy here with R v Halligan (supra) mentioned in the passage from Allen cited earlier; albeit the existence of the inconsistent statement may be relevant but not its contents, unless the facts there stated are expressly adopted as true. The fact that Mr Alexander had made an earlier inconsistent statement in the sense of having named the appellant as a participant in the robbery, was the key point which the Crown was entitled to elicit from him, so as to lay a foundation for the proposition that his present evidence that no-one else was involved was not to be believed. It was unnecessary for that purpose to go into the full detail of the earlier statement which counsel was allowed to do. The Judge did not control the Crown's cross-examination so as to strike the necessary balance between the interests of the Crown and those of the accused. Both in itself, and a fortiori in the light of the next point, this omission constituted a miscarriage of justice.
Evidence of the officer-in-charge and Mr Flavell
Mr Billington argued that the Crown had compounded the problems deriving from the hostile witness issue by leading evidence from Detective Sergeant Hamilton and from Mr Flavell concerning the reasons why he (Mr Flavell) and Mr Alexander had pleaded guilty. Those reasons included, in the case of Mr Alexander, evidence to the effect that he had asked to go and see the detective sergeant seemingly because he wished to bring the investigation to an end. It was also brought out that Mr Alexander had disclosed his offending to other members of his family and was concerned for his safety in prison. On this point the detective sergeant said that he had had some liaison with the Department for Corrections. Mr Alexander was also said to have been concerned about the position of some of his friends and family. All of this, and indeed more, was disclosed to the jury primarily in the evidence of the officer-in-charge, but also through Mr Flavell.
Evidence was led from the same people regarding Mr Flavell's reasons for pleading guilty. The evidence was not only inappropriate in itself but also apt to give the jury the impression that what Mr Alexander had said in his deposition evidence was the truth, even though the jury could not treat it as evidence, let alone truthful evidence. The evidence in question would also have tended to increase in the jury's mind the probative value of Mr Flavell's evidence on which evidence alone the case against the appellant turned, following Mr Alexander's failure to give any evidence incriminating him.
The legal principles on this aspect are relatively straightforward. The reasons why an accomplice or co-offender has pleaded guilty do not provide evidence against a person on trial for participation in the same crime. Nor indeed in itself does the fact that the accomplice or co-offender has pleaded guilty: see R v Nigro [1981] 2 NZLR 178, 184 (CA). The point often arises in conspiracy cases; as to which see R v Windsor [1953] NZLR 83 (CA), and R v Cane [1968] NZLR 787 (CA). In Cane the Court said of Windsor:
There that witness was an accomplice, and it was particularly dangerous to allow him to add to his uncorroborated testimony anything which might have the effect of increasing its probative effect, in the face of the warning which it would become the duty of the learned trial Judge to give.
The evidence which we are discussing should not have been led. We cannot accept Mr Pike's submission that the evidence was justified as a response to some criticism which had been levelled at the police. The evidence went well beyond any fair rebuttal of what could, at best from the Crown's point of view, have been regarded as implied criticism of some aspects of the police's conduct. We consider the present problem in conjunction with the hostile witness aspect, represents a miscarriage of justice.
Evidence of Mr Young
In the light of our conclusions to this point, we need not examine the issue concerning this witness in any detail. Mr Young was one of the appellant's alleged co-offenders in relation to the receiving charges. He had been charged with receiving, had pleaded not guilty, and had not been tried at the time he gave evidence at the appellant's trial. He was called contrary to the rule of practice affirmed in R v Nigro (supra) at 183:
The rule of practice, briefly mentioned in R v Currie [1969] NZLR 193, 210 and more fully referred to in R v Pipe [1966] 51 Cr App R17 and R v Turner [1975] 61 Cr App R67, is that an accomplice who has been charged in relation to the same offence should not be called for the prosecution until the proceedings against him have been completed.
It is however unnecessary in the circumstances to consider whether what occurred amounted to a miscarriage of justice either alone or in conjunction with the other matters we have discussed.
Conclusion
For the reasons given we consider the appellant has established a miscarriage of justice in relation to those other matters. Mr Pike did not seek to invoke the proviso if that were our view. The appeal is allowed, the convictions resulting from the appellant's trial are quashed. We direct a new trial. The sentence appeal does not, in these circumstances, require determination.
Solicitors
Radich Dwyer Hardy-Jones Clark, Blenheim, for Appellant
Crown Law Office, Wellington
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