Carr v R [2000] TASSC 183

Carr v R [2000] TASSC 183 - TASSC 2000 case summary — Zoe

[32]

17 The appellant gave evidence on the voir dire that he was required to appear in court on 9 April 1991, but did not. He said he was not sure if he had gone to Melbourne then. He said he went to Melbourne by boat from George Town and stayed in Prahran with a man named Tony Barron. He said he travelled to Melbourne with his then fiancée and a man named Justin Nicholas. He said he had separated from his former fiancée, who had two children by him, and had not seen her for six years. He said he stayed in Melbourne for some weeks, possibly two, three or four months. He said he could vaguely remember coming back to Tasmania and staying in a caravan park at Legana. He said that, in connection with arranging to appear in court, he wrote a letter to a legal practitioner, Mr Kable, and walked into the police station and gave himself up with another legal practitioner, Mr Dockray. A copy of the letter was tendered, but it was not dated. The appellant also gave evidence that he would have made phone calls from Melbourne to his mother, and to his then fiancée, who returned to Tasmania before him. Under cross-examination he said that he would have been on unemployment benefits whilst in Melbourne; that he had not investigated the availability of records in relation to payments thereof; and that he may have asked his counsel to do that, but was not sure. He had not given her written authority to investigate such records. He had not enquired of the Commonwealth Bank, one of the banks he used, in relation to its records. He had not looked for his former fiancée. He had information that she was "somewhere Hobart way". He had given an alibi notice referring to a man named Les Fisher, and was able to call him because he was in Risdon Prison. He had asked a few people about another alibi witness named in his notice, Wally Bowden, but no-one seemed to know where he was, though he had been told he was up Kalgoorlie way somewhere "working in mines or something". He said he would have told his mother he was going to Melbourne before he went, but that he did not want to call her as a witness because she was not well.

[45]

In his judgment in the present case, Kirby P identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. ... . I would slightly adapt them to read: (i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and, (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg v Clarkson [1987] VR, at p 972; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32). Those five 'heads' provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf Mills v The Queen [1986] 1 SCR, at pp 924-925; Aboud v Attorney-General (NSW) (1987) 10 NSWLR, at pp 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts."

[78]

"Ordinarily, it is the province of the Crown to formulate and present the case for the prosecution which will, in due course, be summed up by the judge to the jury. There may, however, be other matters of fact or law which the trial judge, in the discharge of his duty to ensure a fair trial according to law, considers it necessary to put to the jury, even though not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will, of course, be evaluated by the trial judge and will be to the forefront in his deciding how far, if at all, to put new considerations to the jury. It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing. The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused."

[80]

49 As the appellant's defence was that he had had nothing to do with the robbery, I do not think that, prior to final addresses, it made any difference to the conduct of the trial that the Crown confined its case to the contention that the appellant was the gunman who entered the supermarket. I cannot think of any respect in which the cross-examination of the prosecution witnesses or the presentation of defence evidence would have been significantly different if the Crown had relied on the alternative basis for conviction that it was Mr Kelly who entered the building, with the appellant aiding him, abetting him, and/or acting in concert with him. However, I believe that defence counsel might have addressed the jury differently if she had known that the learned trial judge was going to suggest the alternative basis for conviction in his summing-up. She could, for example, have argued that the Crown case must be inherently weak if two inconsistent bases for conviction needed to be considered. She might have placed more emphasis on matters affecting the reliability of the evidence of Mr Paget, Miss Denholm and Miss West, and given less emphasis to the discrepancy between Mr MacCreadie's height estimate and the height of the appellant. In my view there is a danger that the jury, on hearing from the learned trial judge that there was an alternative basis for conviction that defence counsel had not even mentioned, might have gained the impression that that basis had not been mentioned because there were no good arguments against conviction on that basis. They might have thought she was attaching a false importance to Mr MacCreadie's height estimate, and even that she was thereby trying to mislead them. All would have been different if the learned trial judge had mentioned before final addresses that he proposed to direct the jury as to this alternative basis: Walsh v R [1996] TASSC 59; (1996) 6 Tas R 70. If the appellant's counsel had addressed the jury as to the alternative basis for conviction, it may be that the jury would have entertained a reasonable doubt as to his guilt. I therefore believe there has been a miscarriage of justice.

[102]

61 As Boardman and Turnbull illustrate, "recognition" cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. In this case, if Miss West was to be believed, she had ample opportunity to observe the man who accompanied Mr Paget to her house, but there were other circumstances that called for a Domican warning, namely (a) the limited degree of contact that she claimed to have had with the appellant in the past; (b) her prior inconsistent statements as to her knowledge of him and ability to recognise him; (c) the possibility that she could have been misled by Mr Paget introducing his companion to her by the appellant's name; and (d) the delay of nine years between the crime and the trial. The learned trial judge adverted to the possibility of someone having been wrongly introduced by the appellant's name, and to the possibility of incorrect identification. Ideally, I think he should also have warned the jury in general terms of the dangers of convicting on identification evidence whose reliability was disputed and, whilst discussing the identification issue, referred to the limited contact Miss West claimed previously to have had with the accused and to the delay between the night of the robbery and the trial. I believe his Honour's directions as to identification were inadequate as a result of these matters not having been mentioned, but I would not regard these omissions as sufficient, by themselves, to warrant the quashing of the conviction.

[104]

63 In cross-examination, the appellant said that he had gone away in May or April of 1991. Later, the prosecutor asked him how long he was in Melbourne. The appellant said he was not sure, but that it could have been two or three months. He had said in his police interview that he learned of the robbery through the newspapers. It was most unlikely that the robbery would have been reported in a Melbourne newspaper, and his claim to have read about it was therefore somewhat inconsistent with his alibi defence. The prosecutor cross-examined him about his claim to have read about the robbery in the papers. The appellant said that he would have said that in the police record of interview. It was submitted on the appeal that, by not leading evidence of the claim to have read about the robbery in the papers during the prosecution case, but then introducing evidence of that claim through the cross-examination of the appellant, the prosecutor had split his case in a wholly improper way, and that a miscarriage of justice occurred as a result. I reject that submission. A prosecutor does not have a duty to adduce, as part of the prosecution case, every piece of evidence that might be of some use to rebut a defence. There is no absolute rule that evidence not led by the prosecution can never be introduced after the close of the Crown case; R v Vonarx [1999] 3 VR 618 at 629. If a prosecutor asks an accused person a question in cross-examination with a view to eliciting, for the first time, evidence which should have formed part of the Crown case, the trial judge has a discretion to exclude the evidence if its admission at that stage would unfairly prejudice the accused: R v Kane (1977) 65 Cr App R 270 at 274; R v Chin [1985] HCA 35; (1985) 157 CLR 671 per Dawson J at 686. The evidence in question was not part of the Crown's affirmative case against the appellant. It had been disclosed to the defence. Defence counsel did not object when the matter was raised in cross-examination. In those circumstances, I do not think it can be said that the learned trial judge had a duty to intervene and stop the cross-examination, nor that the relevant part of the cross-examination caused or contributed to any miscarriage of justice.

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