(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a) the nature and gravity of the offence for which the defendant is being prosecuted,
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,
(d) the nature of the relationship between the defendant and the person,
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
(8) ….. "
34 The Trial Judge stated his reasons for acceding to the Prosecutor's application. This was in terms which indicated that he was necessarily dealing with both the Prosecutor's application for leave to adduce further evidence by calling Mrs Gilmour as a witness and, of necessity, the subpoena that initiated that process. He did so, according to the Appellants, erroneously, in wrongly invoking s18 of the Evidence Act. Reliance is placed by the Appellant on the quoted passage from the judgment below, as betraying appealable error.
"11. These are serious proceedings and are so regarded by both sides, the general community, and the court. They are matters of substantial public importance.
12. The defendants have undeniable rights, and are exercising them, in their current situation, but so does the prosecution.
13. Bignold J makes that point in par 37 of his judgment, to which Mr Baird draws attention.
14. The issue at the core of the prosecutor's application is, as Mr Howard says (in par 16 of his written submissions), ' important, indeed … critical'. Mrs Gilmour's evidence would carry considerable weight, not least because no ' other evidence is reasonably available to the Prosecution in this issue ', even though there are relevant admissions in the company's case, which are not admissible against Mr Gilmour.
15. Not only that, but another witness, expected to identify Gilmour as the pilot at the relevant time, failed to give the evidence expected of him when he testified on 15 December. Indeed he swore to the presence, at the airport, on at least one day of the operation, of another person.
16. The business relationship, and the personal relationship, between Mr & Mrs Gilmour are involved here, but the information sought by the prosecutor is correctly described by Mr Howard (par 24 of his written submissions) as ' routine ', in the operations of a company engaged in the rural aviation industry.
17. The relevant provisions of s18 appear to me, therefore, to be satisfied on the evidence before me.
18. It is regrettable that such situations arise while trials are running, despite the best efforts of the Rules, and of the court, to ensure that defendants in class 5 proceedings are fully apprised of the evidence to be led against them.
19. This is a most unusual situation, given the events of 8 and 15 December, and the court simply has to deal with it as it has arisen, regardless of the defence's cry that the prosecutor should have been more thorough in its investigation and preparation.
20. I have, accordingly, decided to accede to the prosecutor's application for leave to adduce further evidence by calling Mrs Gilmour as a witness in the prosecution case. I am fortified in that conclusion by the Court of Criminal Appeal's decision in R v Glasby [2000] NSWCCA 83."
35 Before I deal with the judgment in the context of this appeal ground, I should note that on taking the stand, and having had explained by the Court the questions of compellability, Mrs Gilmour agreed to give the evidence and not claim any right to be silent. She thus did not herself invoke s18 of the Evidence Act.
36 The Appellants' objection to receiving the evidence of Mrs Gilmour was on a number of different bases relied upon both individually and it can be assumed, collectively. These I shall attempt to summarise below:
(a) the correct procedure was departed from in that the court should first have determined whether the Prosecutor should have been allowed to call on the subpoena and only then to consider whether Mrs Gilmour was a compellable witness under s18 of the Evidence Act ;
(b) the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act 1995 (NSW), on the basis that its prejudicial value outweighed its probative value; and
(c) the Trial Judge wrongly invoked s18 of the Evidence Act as the basis for the Prosecutor's application and wrongly dealt with it in his judgment of 22 December 2000.
37 One important matter should be stated at the outset. While clearly enough the Appellants objected to the Prosecutor being allowed to call on the subpoena, thereby to obtain the evidence of Mrs Gilmour, the Appellants did not seek an adjournment when that application was refused nor indeed beforehand.
38 Self-evidently, had the Appellants' prejudice consisted of the need to assess the late evidence of Mrs Gilmour and there were a genuine need for further time to do so in relation to the preparation of the defence case, such an application could and should have been made at the time and may have had some prospects of success.
39 Moreover, it could not be said that the evidence of Mrs Gilmour was likely to have occasioned surprise to the defence. This is because, though the admission of Tableland Topdressing Pty Limited could not be used against its director Mr Gilmour, it would be artificial in the extreme not to recognise, but so far only as surprise is concerned, that Mrs Gilmour on its behalf admitted that Mr Gilmour was the person who piloted the aeroplane.
40 The Appellants pressed upon the Court in the appeal that nonetheless the defence case has been prepared on a particular premise or theory, namely that the evidence for Mr Gilmour being the pilot was very weak. Hence evidence came at a late point after the trial had commenced and at a time when the defence had cross-examined Prosecution witnesses on the basis of that premise and in reliance upon there being no further scope for witness evidence. The Appellants pressed that the prejudice in consequence was sufficiently serious as to cause not only the Trial Judge's discretion to miscarry but for that miscarriage to come within the limited range of circumstances as permit appellate review.
41 However, to succeed in challenging what was a discretionary determination in the course of trial on a matter of procedure and evidence, the Appellants must invoke the limited scope for appellate intervention, by demonstrating that the Trial Judge acted on an incorrect principle, gave weight to extraneous or irrelevant matters or gave no weight or insufficient weight to relevant considerations, accepting that where the nature of the error is not manifest or otherwise discoverable, the result may itself show that the mistake occurred, as where the appellant court may infer an error from an obviously unjust decision; see for example, Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627.
42 Here, it must be emphasised, the decision of the Trial Judge was an interlocutory one where appellate courts do not readily review such decisions; see generally House v the King (1936) 55 CLR 499.
43 The Appellants nonetheless contend that here a matter of general principle is involved. That Mr Gilmour, as an Appellant, would suffer an injustice if the original decision were allowed to stand so far as the admission of Mrs Gilmour's evidence is concerned and the manner in which it was admitted.
44 The question of injustice or unfair prejudice is substantially answered by the failure of the defence at trial to seek an adjournment. It is further answered, insofar as unfair prejudice is concerned by the fact that, first, the defence witnesses had not yet been called. Second, it was not demonstrated in argument before this Court that the particular assumption upon which the defence had been prepared was such that the very structure and form of cross-examination were critically affected. This is more especially where no attack had been made on the credibility of the witnesses for the prosecution. To the extent that further questions could have been directed, the defence chose not to seek to have prosecution witnesses recalled. Indeed in argument, the Appellants conceded that really the only consequence of admitting the late evidence was that it called for some tactical shift by the defence, though even that could have been accommodated had the defence sought an adjournment and the opportunity to further cross-examine prosecution witnesses, neither of which it did.
45 As to the first of the summarised grounds, the premature invocation of s18 before calling on the subpoena, clearly enough the Trial Judge in his judgment of 22 December 2000 did determine whether the Prosecutor should have been allowed to call on the subpoena. He did so, in considering whether Mrs Gilmour should have been permitted to be called at all. That is apparent from para 19 of the judgment of 22 December 2000, read in its earlier context.
46 As to whether the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act, the short answer is this. Even if otherwise it were the case that its probative value in retrospect was outweighed by the danger of unfair prejudice to the defendant, the onus to have that evidence so excluded lay on the defence, who simply did not invoke s137 at trial. Clearly the onus to have such evidence excluded lies on the defence. Self-evidently this is because it is only the defence that can point to the danger of unfair prejudice, to be weighed against any probative value.
47 In any event, in circumstances where Mrs Gilmour, though reluctant to give evidence, did not chose to invoke s18 of the Evidence Act, it is difficult to see how such a contention can tenably now be made. An examination of her evidence, moreover, does not support that contention insofar as unfair prejudice is concerned.
48 In relation to the Trial Judge's treatment of s18, there was indeed some confusion, though not such as to amount to any miscarriage of justice. The Prosecutor was said to have applied under s18 of the Evidence Act 1995 to call Mrs Gilmour as a witness in the case against her husband. That appears at para 9 of the judgment. However, the section is not invoked by the Prosecution but can only be invoked by the spouse.
49 Later in the judgment, the Trial Judge notes that Mrs Gilmour is "reluctant to comply". In that context, if it were fairly said that she had in so demonstrating reluctance, objected to being required to give evidence even if not in terms of s18, then judicial consideration of s18 was required. Clearly enough the Trial Judge was not convinced by any matters before him that s18 could have been successfully invoked. I find no appealable error in that conclusion nor in the exercise of interlocutory discretion that underlay it.
50 Incidentally, in relation to para 40 of the Appellants' written submissions, it is not correct to say that "even if the court was correct in admitting the evidence, the evidence of Mrs Gilmour can only go to establishing the fact that Mr Gilmour left for work on the days in question". First, she did give evidence that student pilots are not permitted to carry out commercial activity on aircraft. Second, she chose not to put any matter in opposition to the proposition that Mr Gilmour was the pilot, indicating that "presumably" he was.
51 Finally, it is apparent that the Trial Judge was alive to the issue of the need for timely re-application to call Mrs Gilmour when the submissions were made. That is apparent in the initial exchange between bench and counsel for the defendants [AB, 160.39-.54] and as can be gleaned from the Trial Judge's attempt to encapsulate the defendant's submission [AB, 229.26-.29].