Morris v R [2010] NSWCCA 152 | Case summary

FRIDAY 16 JULY 2010 MORRIS, Matthew James v R Judgment 1 McCLELLAN CJ at CL: The appellant was convicted after trial of 5 counts of sexual assault and another count of detaining for advantage. Each of the offences was committed on the complainant LM. There was only one issue raised on the appeal being whether the trial judge erred in allowing the Crown to reopen the Crown case. 2 One of the counts in the indictment was an allegation of sexual intercourse with the complainant without her consent and knowing she was not consenting which allegedly occurred on 30 July 2006. When the complainant was being cross-examined she was shown a video of her performing a sexual act on the appellant. She agreed that the video showed both her and the appellant and was asked: "Q: Is that also an occasion when you were consenting to perform oral sex upon [the applicant]? A: I dare say it would be." 3 She was then asked: "Q: Ma'am, I put it to you that the first video that you saw was taken at 4.06 pm on 30 July? A: Dates can be changed on phones." 4 At that point the trial judge intervened and suggested that the issue of whether a date could be changed was a matter for an expert. However, the complainant's answer was not struck from the record. Indeed, no objection was taken to it. 5 It was established in the evidence that the video image was taken from a recording on a mobile telephone owned by the appellant. The image carried a date consistent with the date on which it was alleged count 6 had occurred which, if the date was accurate, had the consequence that count 6 was a consensual act. 6 Defence counsel sought to tender the mobile phone and objection was taken by the Crown. There was a debate but the matter was not resolved and the issue was effectively deferred. 7 During the course of her re-examination by the Crown Prosecutor the complainant was reminded of the video footage. She said that no one other than the appellant and herself were present when the video image was created. She said that the events shown on the video occurred "around 2 weeks before he was arrested" being a date earlier than 30 July 2006. After objection she was then permitted to state that the image was not recorded on the phone which defence counsel sought to tender. She said that she was "pretty positive" that the event occurred before the mobile telephone proffered by defence counsel had been purchased. 8 During the course of discussion in relation to whether the prosecutor could ask these questions the trial judge indicated that the issue of whether the incident recorded on the mobile phone occurred earlier than the date alleged in the indictment was a matter that required explanation. His Honour suggested that there may be a need for the Crown to call evidence to establish "as a matter of expert evidence that you can transfer video material from one mobile phone to another." 9 Later in the trial the question of the admissibility of the mobile telephone which contained the recording of the video image was raised again. That discussion was concerned with whether or not the appellant had maintained possession of the phone. It was proposed that his solicitor would give evidence that the appellant had given him the phone when he had attended upon him at the police station. The trial judge determined that the solicitor could give that evidence. 10 During the course of the solicitors' evidence defence counsel tendered the mobile phone. No objection was taken by the prosecutor. 11 The following day the Crown Prosecutor returned to the issue of the mobile telephone and indicated that he had not objected to its tender because defence counsel had told the prosecution that an expert was being flown to Port Macquarie (where the trial was being held) to give evidence about the mobile phone. The prosecutor said "knowing, I thought, that an expert would be called today and the Crown would have an opportunity to explore the workings of that particular Nokia telephone" objection was not taken to the tender. 12 Thereafter there was a discussion about the issue in which his Honour expressed a concern that a decision had been made not to proceed with expert evidence for which an indication had been given both to the Crown and to his Honour. His Honour commented that the evidence in relation to the mobile telephone was "of potentially crucial importance" but was now "floating in an aura of uncertainty." His Honour expressed the view that expert evidence on the matter was "absolutely essential." Bearing in mind that the "aura of uncertainty" was initially created by the appellant when his counsel raised the issue with the complainant, his Honour expressed concern that the Crown had not raised the issue earlier. His Honour nevertheless indicated that he would permit the Crown to reopen to call evidence, or, if the appellant called evidence on the issue, would allow the Crown to call evidence in reply. 13 The defence case was closed without an expert being called. The Crown Prosecutor then sought leave to reopen the Crown case to call an expert. As the prosecutor had foreshadowed it was submitted that if the Crown had been aware that the defence was not going to call an expert the Crown would have objected to the tender of the telephone. 14 The application to reopen the Crown case was opposed. Defence counsel submitted that the Crown was on notice of the issue when the complainant was cross-examined in the course of the Crown case. Although an intimation was made that the defence would call an expert it was submitted that the issue having been raised it fell upon the Crown to address the matter in the prosecution case. 15 In the course of discussion his Honour repeated his concern that the issue had not been addressed which leaves the "issue in the realm of speculation." The issue to which his Honour was referring was of course whether the image on the mobile telephone had been deliberately given a false date. 16 The trial judge determined to grant the application. In his formal reasons his Honour related the sequence of events which had given rise to the problem and said: "The questions which have not been addressed in the evidence to date are whether, in a general sense, there are mobile phones of the kind, or to be more specific, of the particular mobile phone which belonged to the accused, and which was the subject of this evidence, that a date could be superimposed on a video clip other than the date on which the video was actually filmed. Because of evidence concerning the date of the purchase of this particular mobile phone and the complainant's evidence that the events depicted on the video clips had occurred at some time well before and possibly preceding the date of the purchase, there is also a question whether the video clip could have been transferred from some other device, whether another mobile phone, and that would be the most likely source, in view of the complainant's own evidence, to this mobile phone and in that process, or independently of that process, a date could be superimposed on the video clip which had been actually filmed on some earlier date." 17 His Honour recognised that he had a discretion to allow the prosecution to reopen its case in the event that there were "very special or exceptional" circumstances. After considering whether the Crown ought reasonably to have foreseen that it was necessary to call the relevant evidence, his Honour determined that this was a "case of special and exceptional circumstances". His Honour concluded that the evidence would be of central importance, both in relation to the particular count, but also more generally in relation to the complainant's credit. 18 His Honour said: "I am satisfied that the circumstances of this case are special and exceptional; that this touches on a matter of fundamental significance to at least one count in the indictment and that the clarification of what, at this point, remains evidence of a most uncertain kind, unresolved either way by any appropriate expert evidence without which, even if in the end such evidence might be conflicting, leaves the jury ill equipped to make an informed decision. Therefore, the Crown application should be supported, in this respect." 19 The trial judge then gave consideration to whether the Crown should have foreseen the need to call the evidence. He concluded that it was not a case where the Crown could not reasonably foresee the need to call the evidence and said that "therefore, an application made, as it was after the close of the case for the accused, was far too late to justify making an exception." However his Honour went on to consider the statement made by defence counsel that evidence would be led in the appellant's case confirming that the acts depicted on the video occurred on 30 July 2006. Counsel had said that expert evidence was available confirming the date and time of the relevant occasion when supporting a submission that the video was relevant and should be admitted into evidence. His Honour concluded that at that stage the Crown was entitled to assume that expert evidence would be called by the defence and that it was only when the appellant's case was closed that the position changed. His Honour concluded that the Crown acted in good faith and ultimately that the need to call the evidence was "not reasonably foreseeable, in a sense sufficient to deprive the Crown of leave to reopen the Crown case." 20 The Crown then proceeded to call an expert who gave evidence that it was possible to transfer a video image from one mobile phone to another and to change the date and time on the phone at the time the video image was "saved." Although a forensic examination of the relevant telephone was not made the witness indicated that it was possible that the appellant had fabricated the date on which the events depicted in the video image occurred. 21 The appellant also called an expert who gave evidence to similar effect. It was agreed on the appeal that the evidence was left with the jury with an understanding that it was possible for the date on the video image to have been fabricated. 22 The issue was taken up by counsel in submissions to the jury. Counsel for the appellant drew upon the evidence of the expert she had called and argued that because there was no evidence of relevant messages in the mail files of the tendered telephone the jury should conclude that the video was taken on the date indicated being 30 July. It was submitted that the jury could not conclude that the date on the video image had been fabricated. 23 The trial judge addressed the issue in his directions. He said of the video images: "They obviously become evidence of very considerable importance. If those video clips are accepted as a record of the occasion on the afternoon of 30 July … that would be a very damaging piece of evidence to her credit on that particular count, and if you accept the evidence as raising reasonable doubt about what occurred on that occasion, then it does certainly present you with evidence of the kind I foreshadowed earlier might then effect your judgment as to her credit with regard to other events as well." 24 The trial judge then proceeded to remind the jury of the expert evidence and indicated that there was no disagreement between the experts that "it was possible that this was an event recorded on video on another telephone at some earlier point in time." His Honour told the jury that the evidence meant that the video file could have been artificially constructed and "could have been a film of something that happened on some other occasion, and there was no evidence sufficient to exclude that possibility." 25 His Honour then said: "I feel bound to say in the face of [the different approaches of counsel] which you have been invited to take, that you should be careful before you attach any particular weight to that evidence as a means of discrediting the complainant. I say that having reminded you of the burden which rests on the Crown. The Crown has to prove that this act … occurred when it did in the way described by the complainant, and the ultimate question you have to decide whether you are satisfied beyond reasonable doubt that that is what happened. The material on the mobile phone does not have the effect of undermining the complainant's evidence, in the sense that there is now evidence that demonstrates she was telling a lie."

Discussion 26 The principles relevant to an application by the Crown to reopen its case are well known. In R v Chin (1984-1985) 157 CLR 671 at 676 Gibbs CJ and Wilson J said: "The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v The Queen; Killick v The Queen and Lawrence v The Queen . The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen." See also Rend v R [2006] NSWCCA 41. 27 Although the trial judge referred to Chin and identified the relevant passage his Honour concluded that there was a two stage test which the Crown must satisfy being, at the first stage, that the circumstances are "very special or exceptional" and "secondly, whether the Crown ought reasonably to have foreseen, at some earlier stage than when the applicant was made, the need to call such evidence." 28 It was submitted that his Honour's understanding that Chin required a two stage approach and imposed an inappropriate and rigid process when considering the issue was not correct. Reference was made to the joint judgment of Dixon, McTiernan, Webb and Kitto JJ in Shaw v R (1952) 85 CLR 365 at 3890 where their Honours said: "It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence." 29 It was further submitted that his Honour misunderstood the relevant facts. It was submitted that although defence counsel had intimated that an expert would be called at an early stage his Honour had himself identified that the issue would require the Crown to call its own expert. It was submitted that this necessity was apparent during the Crown case and although the appellant's counsel may have indicated that she would call an expert this did not have the consequence that the Crown could assume that it would not need to address the issue in its own case. 30 In my view the appellant's submission should be accepted. The question of whether the circumstances are "very special" or "exceptional" is to be determined having regard to all of the relevant circumstances. As the passage which I have extracted from Chin makes plain one of those circumstances, which may itself be determinative is whether the need to call further evidence "ought reasonably to have been foreseen." That issue is not to be resolved as a separate question although of considerable significance when determining whether the application to reopen should be granted. 31 In the present case the issue arose during the prosecution case. Irrespective of whether the defence intimated that an expert would be called in the defence case if the video came into evidence, once the issue was raised the prosecutor should have realised the need for the Crown to call expert evidence. To my mind there was nothing very special or exceptional about either the evidence or the circumstances in which it became relevant. Furthermore, although the trial was taking place in Port Macquarie there was no suggestion that the Crown was not in a position to call an expert during its case. As the transcript indicates the relevant evidence was brief, the issue being confined. 32 Accordingly, the ground of appeal is made out. However, the Crown submitted that the Court should dismiss the appeal by application of the proviso (s 6(1) of the Criminal Appeal Act 1912). The relevant principles are well known. The application of the proviso involves consideration of "the negative proposition stated in Weiss v The Queen (2005) 224 CLR 300 at 317 [44] which is that it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted proved beyond doubt the appellant's guilt of the offence" (Kessing v R [2008] NSWCCA 310 at [16]. In R v Kanaan [2005] NSWCCA 385 Hunt AJA said that the effect of the provision is: "that a new trial will not be ordered where the Crown satisfies the Court that no substantial miscarriage of justice has actually occurred - in the sense that the appellant had not lost any real chance (or a chance which was fairly open to him) of being acquitted of the offence for which he had been convicted: Mraz v The Queen (1955) 93 CLR 493 at 514; R v Storey (1978) 140 CLR 364 at 376; Wilde v The Queen (1988) 164 CLR 365 at 371-372." 33 The appellant accepted that the expert evidence called by the Crown was relevant and if called during the prosecution case would have been admitted into evidence. His counsel accepted that the appellant was able to and did call his own expert to deal with the issue. It was submitted that the trial miscarried only because the issue was the last issue addressed in the evidence, but not because of any inability to respond effectively to the Crown's expert. 34 I am not persuaded that this submission has any substance. It is true that the issue was ventilated at the conclusion of the evidence. However even if the matter had proceeded in the appropriate order the appellant would have called his expert in his case. The trial occupied 8½ days with the jury reaching a verdict on the 9th day at 12.05 pm. If raised in the defence case the issue would have been relatively fresh in the jurors' minds. The issue was discussed, as it had to be, by counsel in their addresses to the jury and necessarily reviewed by the judge in the course of his directions. No complaint was directed at those directions. 35 I do not believe that the fact that the issue was ventilated at the close of the evidence would have caused any significant prejudice to the appellant. I have otherwise reviewed the evidence in the Crown case which to my mind was compelling. Although his Honour erred in granting the Crown's application if the appeal was upheld a new trial must be ordered and the evidence would inevitably be admitted. I am not persuaded that the irregularity in this trial is such as to have occasioned a miscarriage of justice. I am satisfied that the evidence proved the appellant's guilt beyond reasonable doubt. 36 For these reasons in my judgment the appeal should be dismissed. 37 BUDDIN J: I agree with McClellan CJ at CL. 38 BARR AJ: I agree with McClellan CJ at CL.

Morris v R

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