R v Apostilides

R v Apostilides - [1984] HCA 38 - HCA 1982 case summary — Zoe

[16]

It is clear from the judgments the subject of the present application that their Honours held a clear view of the way in which the learned trial judge should have handled the situation that was presented during the trial. The primary question was seen to be whether there were sufficient reasons for the prosecutor's decision not to call Brodie and Tibballs, it being implicit in such a question that the Crown can be required immediately after the close of the Crown case to defend its decision by expounding its reasons. After careful consideration, Kaye J. (with whose reasons the Chief Justice and Tadgell J. were in substantial agreement) concluded that the Crown's reasons were insufficient to justify its decision and that in the proper performance of his role the prosecutor ought to have called both Tibballs and Brodie as witnesses in the Crown case. His Honour considered that if the trial judge had followed the correct procedure he would have established that insufficiency at the close of the Crown case. Having invited the Crown, without avail, to call them, he would then himself have called and sworn both Brodie and Tibballs in turn and so made them available for cross-examination by the accused's counsel: see Reg. v. Lucas [1] ; Reg. v. Evans [2] . Because the prescribed procedure had not been followed defence counsel was constrained to call Brodie and Tibballs as his own witnesses, thereby losing the right to cross-examine them and exposing them to cross-examination by the Crown. In the result, Kaye J. concluded that the accused had been unduly prejudiced in the conduct of his defence and that a substantial miscarriage of justice had occurred. It should be added that there is no suggestion that the trial judge was empowered to direct the prosecutor to call the witnesses. The existence of that power was denied by the Full Court in Evans and the Court was correct in taking that view. As Gowans J. observed in Reg. v. Eastwood and Boland [3] : "It is apparent from the authorities that there can be no direction to the Crown to call the witness": cf., also, Skubevski v. The Queen [4] .

[26]

There is limited authority in this Court dealing with the power of the trial judge in a criminal case to call a witness. The only case in which that question actually fell for decision was Titheradge v. The King [15] . In that case, after all the evidence called by both the prosecution and the defence had been given, the judge not only called a witness whose evidence seemed to him to be indispensable, but also, being informed by the Crown prosecutor of statements allegedly made by the witness which were inconsistent with his testimony, then recalled two other witnesses to whom those statements were said to have been made. Neither the accused nor the prosecutor consented to this course, although apparently no objection was raised. It was held that there was a substantial miscarriage of justice. However, there was no clear statement of the principles involved which commanded the assent of a majority of the Court. Isaacs and Rich JJ. were of the opinion that a judge in a criminal trial cannot call evidence of his own motion except where the Crown raises no objection and the accused consents. They simply applied the decision of the English Court of Appeal in a civil case, In re Enoch and Zaretzky, Bock & Co.'s Arbitration [16] , saying that the observations of Moulton L.J. in that case are of general application to the administration of justice both civil and criminal [17] . It is to be noted that this view of that decision has not been taken in England. In R. v. Dora Harris [18] , it was said that it was clearly established that the rule in In re Enoch and Zaretzky, Bock & Co.'s Arbitration "does not apply to a criminal trial where the liberty of a subject is at stake and where the sole object of the proceedings is to make certain that justice should be done as between the subject and the State" and as we have already indicated subsequent authorities in England have confirmed that the rule in criminal cases is not the same as that in civil cases. The development of the law in this way in England may have been influenced by the absence prior to 1968 of any power in the Court of Criminal Appeal to order a new trial in any event including a case where the failure of the Crown to call a witness may be found on appeal to have resulted in a miscarriage of justice. The other members of the Court in Titheradge v. The King were Barton and Gavan Duffy JJ. The latter contented himself by saying that there had been a miscarriage of justice [19] . Barton J. said [20] :

[27]

No one, then, will doubt that there are instances, not numerous, in which in furtherance of justice and in exceptional circumstances presiding judges have rightly taken it upon themselves to actually examine a witness, and, of course, it happens every day that a Judge, in order to understand what a witness has said, asks him a question. But that is a very different matter from the assumption by the Court of the conduct of the case. A trial is a proceeding inter partes, whether the Crown is a party or not, and the conduct of the evidence, subject to questions of admissibility, is in principle the concern of the parties. Where departures from the rigid observance of this principle have occurred, it has, I think, been upon necessity, as, for instance, in the case where, the parties having definitely closed their evidence, the jury wish a person present to be called for their better information. But the right, where it exists, of a judge to take the conduct of the examination of persons not called by either party must be used with extreme caution. In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent. I have already pointed out that the sections of the Evidence Act cited at the Bar are framed, save in a sole particular, upon the assumption that the parties themselves will lead the evidence. That is the normal and proper practice, and any deviation from it must be safeguarded by every precaution. This is especially true in a criminal case It seems to me that in a criminal case the defence ought to be asked whether the accused consents to the course which the judge proposes to take when he desires (for strong cause) to examine a witness, and the examination ought not to take place without such consent. No such consent was asked or given here. That was, I think, a substantial irregularity. 1. (1917) 24 C.L.R. 107. 2. [1910] 1 K.B. 327. 3. (1917) 24 C.L.R., at p. 118. 4. [1927] 2 K.B. 587, at p. 594. 5. (1917) 24 C.L.R., at p. 119. 6. (1917) 24 C.L.R., at pp. 116-117.

[49]

Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call a particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice. In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. 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. Whitehorn [37] was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. 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. 1. (1974) 131 C.L.R., at pp. 121-122. 2. (1983) 152 C.L.R. 657.

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