Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Impeachment of credit and admissibility of evidence as to credit - Other cases - What constitutes "unfavourable" evidence - Crown application for leave to question own witness as if cross-examining - Factors relevant to the exercise of the discretion.

Evidence Act 2001 (Tas), ss38, 135, 136 and 190.

R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474; R v Souleyman (1996) 40 NSWLR 712; R v Lozano (unreported, NSWCCA, 10 June 1997), discussed.

Stephen Joseph Ashton: E R Henry, Wherrett & Benjamin

Judgment Number: [2003] TASSC 140

1 Should the Crown be granted leave to question Scott Davies, a witness called by the Crown, as though counsel for the Crown were cross-examining him? On 2 December 2003, I granted leave in the terms set out in the last paragraph. These are my reasons for doing so.

2 Stephen Joseph Ashton, Shane Ronald Farmer and Craig Peter Randall have pleaded not guilty to charges in an indictment. Mr Randall is charged with rape and Mr Ashton is charged with aggravated assault. Mr Farmer is charged with the same crimes as an aider, and abettor and/or an instigator. By the last count on the indictment, Mr Farmer is charged with procuring by the administration of drugs. It is alleged that all the crimes were committed with respect to the same complainant, an 18 year old female, in an office in a nightclub in Launceston in 1995. It would have been more helpful if the last count had been pleaded first as it is alleged that it was the commission of that crime that led to the commission of the other two crimes.

3 In 1995, the witness Mr Davies, the accused, Mr Farmer, and the accused, Mr Randall, were all partners in the business of the nightclub. Mr Randall and Mr Davies each owned a 15 per cent share in the business. Mr Farmer owned the remaining 70 per cent. Mr Davies sold his share in November 1995, either just before or just after the occurrence of the events that led to the laying of these charges. The third accused, Mr Ashton, was a member of a band which played at the nightclub on the night in question.

4 The trial commenced in Hobart on 17 November 2003, but on Tuesday, 25 November 2003, the jury were discharged and the accused remanded for a retrial because certain inadmissible evidence had been given. The retrial commenced on 1 December 2003. By the time the orders of discharge and retrial were made on 25 November, evidence had been given by 13 Crown witnesses, including Mr Davies.

The Crown case as opened by senior counsel for the Crown

5 After this application was made and before making the order sought, I listened to a tape recording of the whole of the Crown opening address. At the beginning of his address, senior counsel for the Crown spent a considerable amount of time telling the jury, in oblique terms, that some of the witnesses to be called were "good men" and some were "bad men". Counsel told the jury that the Crown had a duty to call people who can give relevant evidence, even though the evidence might not favour the Crown. He did not tell the members of the jury who those witnesses were, nor what their evidence was going to be. It follows that the opening address contained no clear statement of the Crown case with respect to the evidence of the unidentified unfavourable Crown witnesses. Crown counsel then accurately described the legal elements that make up each charge against each accused and frequently said during this part of the opening address, "so we say that the accused committed the crime of ...". There was no identification of the evidence that would be given and which would support such a proposition. Although many witnesses are to be called on the trial, senior counsel for the Crown referred only briefly to the evidence to be given by the complainant and a by security officer with whom she left the nightclub after being the object of alleged sexual abuse. With respect to the evidence given by the complainant, counsel told the jury that she had lost her recall of the critical events, except for some flashes of memory. He told the jury that the complainant will say that the accused, Mr Farmer, gave her a drink which made her feel strange and she thereupon left Mr Farmer and went to look for her friends in the nightclub. He made reference to the complainant's evidence of the critical events by obliquely telling the jury, "she will give evidence of her condition; her ability to stand, walk and talk", although he did later refer to a specific piece of evidence to be given by the complainant, namely that she was unable to move her hair off her face at the time it was alleged the crimes were committed. Senior counsel told the jury, "she ... has spotted memory [sic] of what happens to her in that room. I'm not going into that because she, on Wednesday, will be giving that evidence in any event".

6 The opening address for the Crown made it clear that it was alleged that the crimes charged were committed as charged, but what facts were to be adduced from what witnesses and how those facts would make out the Crown case remained totally obscure at the end of the Crown opening address.

7 Accordingly, during the course of submissions upon this issue, I asked senior Crown counsel what was the Crown case. I was told that it was reflected in the evidence of an eyewitness, Mr Lockwood, and was referred to a proof of his evidence in the form of an apparently unsworn statutory declaration in the Crown papers. I set out the relevant parts of it:

"A few months after I began work [as a security officer] at the Playroom I remember an incident that occurred in the Manger's office of the club. It was still 1995. It was around closing time on the particular night, around 3am, and I went to the office to sign my time sheet. The door to the office was open and I walked straight in.

The first thing I saw when I walked into the office was a girl, who I knew as [K], lying naked on the office desk. The desk was up against the wall and [K's] head was nearest to the wall. [K's] eyes were closed, she was moving slightly but she was pretty well out of it. In my opinion [K] didn't look drunk but drugged. I had seen [K] earlier that night when I let her into the club at the door, about midnight. [K] was fine when she got to the club - happy. This was another reason that I thought she was drugged not drunk, because she had got into that state so quickly (between midnight and 3am).

Other people in the room were Shane Farmer and Skip [the accused, Mr Randall]. Farmer was to the left of the office doors I walked in and Skip was standing at the end of the desk between [K's] legs. I said, 'What's going on here?' and Skip replied something like 'We're just having a bit of fun'. Farmer was laughing, but I can't remember him saying much.

I walked around to the other side of the desk to where the book work was. I [sic] guy I know as Styne, [the accused Ashton] from the band 'Stynes Legends', came into the office after me and I think he must have shut the door. I heard it slam shut. I sat down to do the book work.

Skip then undid his trousers and started to have sex with [K]. He put his penis inside her vagina, [K] didn't move. I think her legs were up on the table and Skip grabbed hold of her somehow, but I can't exactly remember where.

I heard Farmer saying things to Skip like 'Give it to her', 'You're the man' and he was laughing. From where I was sitting I could see Skip penetrating [K]. I am sure that Skip didn't use a condom.

I can't remember hearing Stynes speak during this. Skip was having sex with [K] for approximately two minutes. He came inside her. Skip then pulled his penis out of [K] and pulled his trousers up. I can't remember the exact conversation after this but Farmer and Skip were bragging and laughing about it.

Skip didn't seem worried about me, Farmer or Styne being in the room whilst he was having sex with [K].

I can remember Farmer have a drink in his hand, it was a stubbie. The only drink back then that you got in a glass was scotch or spirits, all others were served stubbies.

During the eighteen months that I worked at the Playroom I never saw Farmer or Skip drunk. To me they didn't seem drunk on the night of [K's] incident. Styne wasn't drunk either.

I left the room after this. I shut the office door behind me when I left. I would have been in the room about 10-15 minutes."

8 I interpolate that there are some parts of that extract that may not be admissible, but that does not fall for consideration at the moment.

The evidence about which the Crown seeks leave to question as if cross-examining

9 Mr Davies gave evidence that he was in the office at the nightclub in the early hours of the morning on Sunday, 5 November 1995. He said that the accused, Mr Farmer and Mr Randall, were also there and they were discussing the financial success of the evening. He said that the other accused, Mr Ashton, either came into the office after him or was also there when he went in. He said that the complainant came into the office and "made an offer to strip for money". He said that when she walked into the room and made an offer to strip, she appeared to be "intoxicated a certain extent but the offer she articulated pretty well [sic]".

10 Mr Davies said that he "wasn't interested in the offer" and as he had work to do in the nightclub, he left the office. He said that he returned after about 10 - 30 minutes and saw the complainant standing on the desk without any clothes on. He said that there were about 10 - 12 people in the room, including Mr Farmer and Mr Randall. He added that Mr Ashton entered the room at some unknown point of time. Mr Davies then described the complainant getting down "into sort of lying position on the desk". When in that position, he said Mr Randall appeared to have sex with the complainant. When asked if the complainant appeared to be an active participant, Mr Davies said "I would have thought so yes, it appeared to be a consensual arrangement, well there was no - I didn't hear any withdrawal of consent or anything of that nature". He said he would have thought that she was conscious.

11 The Crown seeks leave to question Mr Davies as though cross-examining him pursuant to the Evidence Act 2001 ("the Act"), s38(1)(a), which provides that leave may be given to a party to ask questions about "evidence given by [Mr Davies] that is unfavourable to [the Crown]", as if the party were cross-examining Mr Davies.

12 It is established that s38(1) empowers the trial judge to grant such leave to the Crown as it is a "party" within the meaning of that subsection. See Adam v R (2001) 183 ALR 625; R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474. Defence counsel did not contend to the contrary.

(1) evidence that has been given by the witness; and

Thus, the application cannot be made until the relevant evidence has been given. Cf R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at 462. Presumably, such evidence may be given either on the voir dire or on the trial.

14 The Act, s38, contemplates that leave may only be granted with respect to an identifiable part or parts of the evidence given by the impugned witness (R v Hogan [2001] NSWCCA 292), and, by virtue of subs(3), must be confined to questions "relevant only to the witness's credibility".

15 Without limiting the matters relevant to the proper exercise of the discretion, the following statutory provisions need to be taken into account:

"(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction, it is to take into account -

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party."

"192 - (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on any terms the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(e) the power of the court, if any, to adjourn the hearing or to make another order or to give a direction in relation to the evidence."

"135 - The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

16 In certain circumstances, it may be relevant to have regard to the provisions of ss136 and 137. It may be noted that the Act, s38(1), uses the expression "as though the party were cross-examining the witness". This is no doubt due to the provisions of the Act, s3(1) and (3) which defines cross-examination as follows:

"(3) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence."

The conduct of cross-examination is governed by the Act, ChII, Pt1, Div5.

Is the impugned evidence "unfavourable" to the Crown?

17 Counsel for the accused men submitted that the evidence of Mr Davies was no more than a version of events and although that version is in conflict with the statutory declaration given by Mr Lockwood, part of which I have set out above, that does not make Mr Davies' evidence unfavourable to the Crown. Mr Dunn QC, counsel for Mr Farmer, submitted that although it might be said that Mr Davies' evidence did not fit the Crown's "case concept", that did not make it unfavourable to the Crown. He pointed out that Mr Davies' evidence was consistent with the statement he gave to the police when first interviewed about this matter, consistent with his evidence given at the committal hearing and consistent with his evidence given on the first trial, at which the Crown did not seek leave to question Mr Davies as if cross-examining him.

18 Adam v R (2001) 75 ALJR 1537 was a case concerning evidence given by an unwilling witness which was inconsistent with a prior statement made by that witness. This state of affairs led to the following observation in the joint judgment at par27:

"There appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without 'making a genuine attempt to give evidence', is to give evidence 'unfavourable' to that party."

19 In R v Le at first instance [2001] NSWSC 174, McLellan J said, at par15:

"Adopting this approach to the section, in my opinion, the word 'unfavourable' should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested. Only this approach will allow the jury to have the opportunity of coming to an informed view about whether or not the evidence called by the Crown should be accepted."

20 In R v Souleyman (1996) 40 NSWLR 712, Smart J said, at 715:

"The word 'unfavourable' in s38(1)(a) does not mean 'adverse'. It means 'not favourable'. That construction could have wide ranging ramifications but the Court is given a discretion and would carefully examine the circumstances to see how the discretion should be exercised. A far fetched example would be if a witness said he could not remember something that happened three years ago. The discretion is important and designed to prevent any form of abuse in the administration of the more liberal test of 'unfavourable'."

21 In R v Lozano (unreported, NSWCCA, 10 June 1997), Hunt CJ at CL, with whom Barr J agreed, said, at 10:

"Section 38 was intended by the Law Reform Commission to abrogate the common law relating to hostile witnesses, (26 ALRC vol 1, par 625) and the Act has been successful in doing so (Regina v Ivan Robert Marko Milat (Hunt CJ at CL, 23 April 1996, unreported, at 4-5) The word 'unfavourable' which is used in the section (and which is not defined in the Act) should not therefore be interpreted as necessarily requiring either the witness or the evidence itself to be hostile or adverse to the case of the party calling the witness, in the sense that the evidence denies that case or attacks other evidence upon which that party relies. In Regina v Souleyman (1996) 40 NSWLR 712 at 715) Smart J adopted a dictionary meaning of unfavourable as 'not favourable'. I am content, too, to adopt that meaning.

See also R v GAC (CCA, unreported, 19 December 1996) and R v Richard Adam (Wood CJ at CL, unreported, 3 December 1998) especially p1."

This view was adopted by Carruthers JA in R v Spathis [2001] NSWCCA 476 at par347.

22 In R v Ivan Milat (unreported, NSWSCA, 23 April 1996), Hunt CJ at CL said that the Act, s38, was directly applicable where the Crown is obliged to call a witness at the request of the accused, notwithstanding that the evidence of that witness is unfavourable to the Crown case.

23 R v Parkes [2003] NSWCCA 12 was a case in which the prosecution called a witness and adduced evidence from him with respect to matters favourable to the prosecution, but did not adduce from that witness matters which were unfavourable to the prosecution. The latter evidence emerged from the cross-examination. Following its emergence, the prosecution sought, and was granted leave, to cross-examine with respect to that part of the evidence. That ruling was upheld by the Court of Criminal Appeal, even though it was sought and given as a result of a tactical forensic decision taken by the prosecution not to lead the unfavourable evidence-in-chief. Ipp JA (with whose reasons for judgment the other members of the court agreed) said at par70:

"70 There is ample authority that an application to question a witness under s 38 may be allowed where unfavourable evidence is led in cross-examination: it is sufficient to refer to R v Milat (unreported, NSWSC, Hunt CJ at CL, 23 April 1996); R v Pantoja (unreported, NSWCCA, 5 November 1998); R v Mansour (unreported, NSWSC, 19 November 1996). There is also ample authority to the effect that s 38 is not limited to circumstances where the unfavourable evidence is unexpected: it is sufficient to refer to R v Esho [2001] NSWCCA 415; R v Fowler [2000] NSWCCA 142."

"Section 38 has the potential for transforming traditional procedure. The mere fact that this occurred was not enough to constitute unfair manipulation. Although the deliberate decision taken by the Crown fell into the basket of forensic tactics, it did not lead to the Crown's application being an abuse of the section."

25 It seems to me that the burden of authority to date is that "unfavourable" as enacted in s38 should be given a wide interpretation, leaving it to the proper exercise of the discretion to curb inappropriate grants of leave. The Crown case on this trial is that each of the accused committed the crimes charged against them and evidence that tends to prove to the contrary falls within the description of evidence unfavourable to the Crown. I find that the evidence-in-chief of the witness Mr Davies of the events that he saw and heard on his two visits to the office in the nightclub in the early hours of the morning of 6 November 1995 is evidence unfavourable to the Crown. Contrary to submissions by defence counsel, I find that the two visits, separated by a very short interval, are inextricably bound up, one with the other. The sobriety of the complainant, as described by Mr Davies on her arrival at the office in the first instance, is plainly relevant to her sobriety on his return to the office a short time later. His evidence tends to negate a key part of the Crown case, namely, that the actus reus of the crimes of rape and aggravated sexual assault were committed without the consent of the complainant. The same evidence also tends to negate that the complainant was stupefied by the administration of a drug as charged by the remaining count on the indictment.

26 Despite the fact that the Crown has known about this evidence for a long time, and despite the fact that it was recently given at the aborted trial, written notice of intention to seek leave was not given until Friday, 28 November 2003, one working day before the evidence was led. Further, I was informed, without objection from the bar table, that the notice was expressed in inconclusive terms namely, that the Crown may seek leave to cross-examine Mr Davies.

27 Mr Dunn placed great emphasis on the undeniably correct proposition that the Crown has not given notice of intention to make this application "at the earliest opportunity" and consequently has not given the statutory notice. However, the Act, s38(6)(a) does not impose the giving of such notice as a condition precedent to the grant of leave. The subsection merely prescribes the giving, or failure to give, early notice as a factor to be taken into account in the exercise of the discretion. No counsel was able to identify an unfavourable consequence to the accused by reason of the Crown's failure to give notice of its intention to seek leave pursuant to s38(1) at the earliest opportunity and I am unable to perceive one.

28 It is quite clear to me from the conduct of the last trial, and counsel did not suggest to the contrary, that Mr Davies' evidence-in-chief of what occurred while he was in the office of the nightclub at the critical times will not be challenged in cross-examination by counsel for any of the accused persons. If leave is not given to the Crown, it is clear that defence counsel will rely upon Mr Davies' evidence in chief as exculpatory, and will no doubt emphasise that he was called as a witness for the prosecution. That, of course, is perfectly proper, but it is equally proper and fair that such evidence be tested by questions in the nature of cross-examination.

29 Mr Davies was an eyewitness to the critical events. The Crown has a prosecutorial obligation to call all relevant evidence unless a witness's credibility is in doubt. See Wakeley v R [1990] HCA 23; (1990) 93 ALR 79 at 87. Not to call a witness such as Mr Davies without material clearly demonstrating that he is without credibility, is to run the risk of there being a miscarriage of justice. See R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575. Indeed, Mr Dunn agreed that if Mr Stoddart had not called Mr Davies, he would have complained to me that a miscarriage of justice had occurred, thus setting the scene for a like submission in the Court of Criminal Appeal in the event of there being a conviction. See also Dyers v R [2000] HCA 45. This does not mean that the Crown has to put to the jury that it ought to rely upon the evidence of all of the witnesses called by the Crown.

30 Turning to the Act, ss135, 136 and 192, it can be observed at the outset that the evidence with respect to which leave is sought is key evidence and is at odds with the statutory declaration of Mr Lockwood. Mr Lockwood was cross-examined at length at the committal proceeding and Mr Dunn submitted that the strength of his written statutory declaration was considerably weakened as a result of that cross-examination. It does appear from the cross-examination that in some respects, the accuracy and reliability of the written evidence of Mr Lockwood is weakened, but that fact per se has little impact on the exercise of the discretion. It was not contended that any leave should be fettered by terms. See s192(1).

31 It was not contended that any grant of leave will have any impact on the length of the trial. No one suggested that it might result in other witnesses being called, other witnesses being cross-examined at greater length, or other issues opened up. Cf R v Hogan (supra).

32 On the issue of unfairness, it was put that a grant of leave would be unfair because it would result in Mr Davies being singled out from all other Crown witnesses because he would be the only witness of the Crown who had been cross-examined by his own counsel. I doubt that Crown cross-examination of Mr Davies will single him out as suggested or, if it does, that that will have any impact on the jury adverse to any of the accused. Had the Crown opening been more explicit, no doubt Mr Davies would have been named as an eyewitness whom the Crown would be calling in obedience to its prosecutorial duty, but whose evidence would be in conflict with, and should not be preferred over, Mr Lockwood, another eyewitness, and other Crown witnesses. I do not see any unfairness to any of the accused arising out of a grant of leave. The fact that Crown counsel cross-examines Mr Davies will not give any greater emphasis to the Crown position namely, that his evidence with respect to the critical events should not be accepted.

33 The provisions of the Act, s192(2)(d) raise no issue other than the obvious ones that attach to these proceedings by reason of them being a criminal trial.

34 I am unaware of any relevant matter within the ambit of subs(2)(e) that requires consideration.

35 No matter that has not already been referred to in these reasons arises for consideration under ss135 and 136. Accordingly, the application for leave is granted. The order is that, at the conclusion of the evidence-in-chief of Mr Scott Davies, counsel for the Crown is given leave to question him as though he were cross-examining him, about matters relevant to his credibility with respect to his evidence-in-chief recorded in the transcript between: