Bianca Shandell SANTO v R [2009] NSWCCA 269 | Case summary

The appeal 18 There are four grounds of appeal. Specific complaints about the conduct of the trial are made in the first three grounds, while the fourth ground asserts that the combination of those three complaints establishes that the trial miscarried. The first and third grounds are concerned with the evidence of Luke Seiden, and it is convenient to consider them together. 19 As I have said, Mr Seiden had been dealt with for his part in the incident before the appellant's trial. The prosecution accepted his plea of guilty in the Local Court to assault occasioning actual bodily harm, and he was placed on a good behaviour bond. The Crown secured his attendance at the appellant's trial but, as I have said, the prosecutor declined to call him. This gives rise to the first ground of appeal, which complains that that refusal gave rise to a miscarriage of justice. 20 Ms Hickleton of counsel, who appeared for the appellant in this Court but not at the trial, took us to passages of the transcript in which the prosecutor announced that he did not intend to call Mr Seiden and defence counsel protested that he should. In this Court affidavits of the prosecutor, a trial advocate with the office of the Director of Public Prosecutions, and his instructing solicitor were read. Put shortly, what emerges from this material is that the prosecutor did not confer with Mr Seiden and took the view that, as he was a co-offender with the appellant, the Crown was not obliged to call him. 21 Ms Hickleton referred us to The Queen v Apostilides (1984) 154 CLR 563, in which the High Court examined the extent of the responsibility of a Crown prosecutor to lead evidence relevant to the crime charged, whether or not it supports the Crown case. The Court referred to Richardson v The Queen (1974) 131 CLR 116, in which it was said (at 119) that among the factors to be taken into account by a Crown prosecutor in deciding whether to call a particular witness were whether the evidence of the witness was "essential to the unfolding of the Crown case", whether the evidence was "credible and truthful", and whether "in the interests of justice it should be subject to cross-examination by the Crown …" 22 In Apostilides (at 576) the Court observed that a refusal by a prosecutor to call a witness whose evidence might be favourable to the defence "will be justified only by reference to the overriding interests of justice". Their Honours added: "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." 23 The Court (at 575) set out six propositions concerning the power and responsibility of a Crown prosecutor to determine the witnesses to be called in the Crown case. For present purposes, I need refer only to the first and the sixth of those propositions: "1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. … 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice." 24 Their Honours expanded upon that sixth proposition (at 577 - 8) as follows: "It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. … So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory." 25 These principles were revisited by this Court in R v Kneebone [1999] NSWCCA 279, 47 NSWLR 450. In the course of delivering the leading judgment, Greg James J considered the decision of a prosecutor not to call evidence which he or she considers to be unreliable, referring to the passage from Apostilides at 576 which I have cited. His Honour said at [49]: "Since both experience and logic confirm that merely because a witness' evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability: …, at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion." 26 Of course, Richardson and Apostilides were decided before the enactment of the Evidence Act 1995. The observation in Richardson, also cited above, that a prosecutor's decision about calling a witness might be influenced by whether the evidence should be subject to cross-examination by the Crown was made in the light of the law as it then stood. In Kneebone it was recognised that that landscape may have changed because of the discretion conferred on a Court by s 38 of the Act to allow a party who has called a witness to cross-examine that person if his or her evidence proves unfavourable to the party: per Greg James J at [54] - [55] and Smart AJ at [104]. 27 The issue was considered later in Kanaan & Ors v R [2006] NSWCCA 109 at [80] - [85]. Among other things, the Court said: "[84] The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. … [85] Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act : …" 28 In the present case, relying on these authorities, Ms Hickleton noted that no statement had been taken from Mr Seiden, and the prosecutor had decided not to call him without having conferred with him to assess the reliability of any evidence he might give. She argued that he was the closest eyewitness to the events giving rise to the charge against the appellant, and his observations were essential to the narrative underlying the Crown case. She submitted that there is no rule of law that the Crown may refuse to call an eyewitness simply because he or she had been dealt with as a co-offender with the accused, although neither she nor the Crown prosecutor in this Court referred us to any authority on that point. 29 There has been a miscarriage of justice, she argued, because the defence, being left to call Mr Seiden, lost the advantage of cross-examining an important eyewitness. Further, because he was called as a witness in the appellant's case, the jury might for that reason alone have seen him as being "in the camp of the defence". She conceded that the prosecutor would have been entitled not to call him if, after conferring with him, it appeared that he clearly was in the defence camp and, for that reason, was unreliable. 30 No doubt, the fact that a witness was criminally involved in the matter giving rise to the trial would be relevant to a determination of his or her reliability. However, whether a prosecutor would normally be justified in refusing to call a witness for that reason alone need not be determined for present purposes. Nor is it necessary to comment upon the appropriateness of the prosecutor's behaviour in this case. It should be said that the affidavit material discloses that he and his instructing solicitor acted conscientiously. In particular, their reluctance to confer with Mr Seiden arose out of concern that he might make admissions about his own behaviour which could expose him to further prosecution arising from this incident. The prosecutor conveyed this concern to defence counsel and arrangements were made for Mr Seiden to obtain independent advice. 31 A reading of the evidence Mr Seiden gave conveys to me that Ms Hickleton's concession was appropriate. He did appear to be in the defence camp and the reliability of his evidence was questionable. In examination-in-chief he described his relationship with the appellant as "my cousin and my sister … she's my blood cousin". Indeed, the appellant's evidence was that he was like a brother to her. He presented as having a selective memory of what occurred in the lounge room. He said in chief that he had been drinking "heaps" that evening, that he was not aware of "anything anyone said, or anything anyone did" and was aware only of his own actions, that is, his beating the complainant. In cross-examination, he confirmed that his assault upon the complainant was the only thing that he could remember in any detail. Otherwise, he said, "I remember bits and pieces. I remember the violence, I remember that bit." Asked where Mr Cushman and Ms MacIntosh were at that time, he replied, "Wouldn't have a clue where they were. I was too busy punching him …" 32 The question for this Court is whether, in the context of the trial as a whole, the refusal of the prosecutor to call Mr Seiden caused a miscarriage of justice. I am not persuaded that it did. Mr Seiden gave evidence and, as the Crown prosecutor before us put it, the appellant had the benefit of that evidence, such as it was. No doubt, defence counsel called him only after a sober assessment of the value of his testimony. True it is that the prosecutor, having elected not to call him, enjoyed the opportunity of cross-examining him. However, if he had been called in the Crown case and given the same evidence, it is likely that the prosecutor would still have been able to cross-examine him by leave under s 38 of the Evidence Act. Moreover, the appellant also had the benefit, perhaps limited, of Mr Cushman's recorded interview. 33 I do not find this ground established. 34 The third ground of appeal relates to the nature of the offence of which Mr Seiden was convicted. At an early stage of the proceedings the trial judge ruled that, if he were called, Mr Seiden should be identified in the evidence as an alleged co-offender who had been dealt with for his part in the incident, but that the jury should not be told what the charge against him was or the outcome of his case. His Honour did so after considering R v Booth [1982] 2 NSWLR 847 and R v Howard & Ors (1992) 29 NSWLR 242, to which I shall refer shortly. Later, having decided that Mr Seiden would be called, defence counsel submitted that nothing at all should be said about his being dealt with. However, this was a formal submission and she acknowledged that his Honour had already ruled upon the matter. 35 In the course of his evidence-in-chief, Mr Seiden referred to himself as "a co-accused in this matter". In cross-examination, when being asked about the effect upon his memory of his drinking, there was the following exchange: "Q. But you can remember punching [the complainant] can't you? A. Bloody oath. I pleaded guilty to that mate and I got sentenced for it." 36 A question by defence counsel in re-examination seeking to elucidate that answer was objected to and rejected. In the absence of the jury, defence counsel expressed concern that Mr Seiden had revealed that he had pleaded guilty to an offence arising from the incident, that this was a matter which might attract the jury's interest and that, accordingly, they should be informed of the charge of which he was convicted. His Honour rejected that submission, saying that he proposed to tell the jury that what Mr Seiden had pleaded to and what was done to him had nothing to do with the case. 37 In summing-up, his Honour gave this direction: "Now Mr Seiden, all you need accept about him is that he has been charged and dealt with in connection with the events of this night. What he was charged with and how it was dealt with are matters absolutely immaterial for your consideration in whether the Crown had proven the guilt of this accused." 38 The third ground of appeal is that exceptional circumstances arose in the trial whereby the nature of Mr Seiden's conviction became relevant and his Honour erred in not allowing evidence of it. It is necessary to examine the decisions in Booth and, more importantly, Howard. 39 In both cases evidence of accomplices was led in the Crown case against the accused. Booth was a conspiracy case in which two accomplices who gave evidence for the Crown had pleaded guilty to the conspiracy and been dealt with. Evidence that they had been dealt with in relation to the matter was admitted over objection, and the Court of Criminal Appeal held that it had been properly admitted. The Court considered the common law requirement of a warning to the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice. In that context, it was held that it was relevant to the jury's assessment of the evidence of an accomplice to know that, having been dealt with, he had nothing to gain by giving evidence against the accused: see the judgment of Street CJ at 849 - 50, and the short concurring judgments of O'Brien CJ of Cr D and Lee J at 850 - 1. 40 Howard was a murder case in which the victim died as the result of an attack upon him by a number of offenders. Three of the appellants had been found guilty of murder after a trial in which evidence had been given against them by two other offenders who had been sentenced after pleading guilty to manslaughter. Consistently with Booth, evidence was led that they had been dealt with for their part in the homicide, but the jury were not told of the nature of their convictions. The trial judge had refused to allow cross-examination revealing that that they had been dealt with for manslaughter, rather than murder. 41 The Court held that the trial judge's ruling was correct, and was supported by the then recent decision of the Privy Council in Hui Chi-Ming v The Queen [1992] 1 AC 34. It is unnecessary to repeat the Court's analysis of that case at 251. It is sufficient to say that it was a murder case, although it did not involve accomplice evidence. At issue was whether at the separate trial of the appellant, as a member of a joint criminal enterprise in which the victim was killed, it was open to his counsel to prove that at an earlier trial the principal offender had been acquitted of murder and convicted of manslaughter only. Their Lordships held that that was not permissible, and that the verdict of the jury at that earlier trial was irrelevant to any issue which the jury had to decide in the appellant's trial. 42 In summarising the Privy Council's reasoning, the Court in Howard said (also at 251): "Their Lordships pointed out, by reference to a number of decided cases, that it is far from unusual for there to be inconsistent verdicts following the separate trial of co-offenders. The anomaly that results from such inconsistent verdicts is, of course, often advanced as a reason to incline a court in favour of ordering a joint trial, but joint trials of co-offenders are sometimes impossible and sometimes inappropriate. Their Lordships observed that, in the ordinary case, it is not relevant at the trial of one co-offender to prove the outcome of the trial of another co-offender. Some exceptional feature needs to be present before it will be considered relevant to give evidence of what happened in earlier cases arising out of the same prosecution." 43 Ms Hickleton submitted that in the present case there was such an exceptional feature. Mr Seiden's revelation, in an unresponsive answer, that he had pleaded guilty to punching the complainant carried the risk that the jury would assume he had pleaded guilty to the same charge as that faced by the appellant, that is, robbery in company. That, Ms Hickleton argued, could have led the jury to infer that he had formally admitted his participation in the very criminal enterprise with which the appellant was charged. This would be prejudicial to the appellant, and the same misapprehension may have led the jury to reject Mr Seiden's evidence that there was no such enterprise and that he did not see the appellant steal any money from the complainant. Accordingly, she said, the jury should have been told the nature of the offence to which he had pleaded guilty. 44 As to whether the jury should have been told at all that Mr Seiden had been dealt with, one might question whether the reasoning in Booth was apposite to a trial in which the alleged accomplice was called in the defence case. Its rationale appears to be directed to accomplice evidence, relied on by the Crown, implicating the accused. However, that matter was not advanced in argument and does not call for decision. 45 The difficulty with Ms Hickleton's submission is that to have told the jury that Mr Seiden pleaded guilty to assault occasioning actual bodily harm could itself have been misleading or, at least, confusing. It is likely that his doing so followed negotiation between his legal representatives and the Crown. As one would expect, there was nothing before the trial judge, or before us, to explain why that course was taken. To have revealed the nature of his conviction to the jury was likely to have led them to wonder why he had not been dealt with for the robbery in which he was said to be complicit with the appellant and, instead, had been convicted only of an offence consistent with the violence which he admitted having meted out to the complainant. To have taken that step would have been fraught with the danger of misguided speculation on their part. 46 As the advice of the Privy Council in Hui-Chi Ming makes clear, in the trial of the appellant it was for the Crown to establish the complicity of Mr Seiden by admissible evidence. The nature and outcome of the proceedings against him were not relevant, and I am not persuaded that the trial was attended by any exceptional feature which made them relevant. His Honour's approach was correct and his direction to the jury was appropriate. This ground also is not made out. 47 Finally, the second ground of appeal arises from the fact that the appellant, in answer to a question in cross-examination, volunteered that she had been in custody. In chief, she had said that she had not seen the complainant for about 12 months prior to the incident in question. In answer to a question in cross-examination she said, "… it was about 12 months. I'd been in custody so - it was about 11 or 12 months." An application by defence counsel that the jury should be discharged, because the prejudice caused by the appellant's revelation could not be cured, was refused. The ground is that his Honour erred in declining the application. 48 His Honour took the view that any prejudice could be cured by an appropriate direction. In the course of summing-up he dealt with the matter in this way: "And the accused did refer at one stage, in answering a question from the Crown, to the fact that she had been in custody. We do not know anything about that. We do not know whether she was in custody awaiting trial and was later acquitted, so it would be terribly unfair to hold that against her if she turned out to be in that situation. So, you must not speculate about that, you must put that, together with the other things that I have talked about, entirely out of your mind and concentrate on a calm, clear, indeed cold, analysis of the witnesses and their evidence." 49 His Honour's reference to "the other things that I have talked about" related to evidence that the appellant was not only a sex worker but also a user of illicit drugs. Ms Hickleton's submission was that those matters themselves were likely to have been considered with opprobrium by at least some members of the jury, and the further revelation that she had been in custody, clearly in relation to some matter other than the offence charged, created a measure of prejudice which was irremediable. She also pointed out that his Honour was in error when he said of the period of custody, "… we do not know when it was." It was clear from the appellant's evidence that it was for about 12 months prior to the incident the subject of the trial. It does not appear to me that that, of itself, is a matter of significance. 50 The ground was argued by reference to authorities dealing with trials in which an irregularity had occurred. That line of authority, beginning with R v Marsland (NSWCCA, unreported, 17 July 1991) was examined by Beazley JA in Qing An v R [2007] NSWCCA 53 at [21] ff. The effect of those authorities is that an appellate court should consider whether it could be satisfied that the irregularity had not affected the verdict, which would turn upon the nature of the irregularity and the adequacy of any direction the trial judge gave about it. In the present case, it appears to me that the appellant's unguarded revelation could have been dealt with by an appropriate direction and the direction which his Honour gave was adequate. 51 I might add that this Court has long recognised that whether a jury should be discharged is a matter within the discretion of a trial judge, who has the advantage of being appraised of the progress and atmosphere of the trial, and that is a discretion with which an appellate court would not lightly interfere. I am not persuaded that what occurred in this case gave rise to a miscarriage of justice, and this ground also must fail. 52 It follows that the fourth ground, relying upon the totality of the complaints the subject of the other three grounds, cannot succeed. I would dismiss the appeal. 53 LATHAM J: I agree with Hidden J.

Bianca Shandell SANTO v R

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