LAW - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERJURY, FALSE
SWEARING AND LIKE OFFENCES - PROOF AND EVIDENCE
- accused convicted of murder
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERJURY, FALSESWEARING AND LIKE OFFENCES - PROOF AND EVIDENCE- accused convicted of murderof 17 month old girl in Ipswich in 1985 - conviction quashed on appeal - newevidence places accusedin Ipswich at relevant time - new evidence tocorroborate other witness' charges - whether evidence should be excluded -effect ofpassage of time - whether false testimony given knowingly is materialto question at issue in proceedings.CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OFPROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OFPROCEEDINGS - ABUSE OFPROCESS - whether perjury charge can lie where accused acquitted and thealleged perjury is a claim of innocence- whether principles of resjudicata or autrefois acquit operate to prevent retrial of factsconstituting offence - whether doctrine of issue estoppel operates in criminal
proceedings -
whether abuse of process turns on facts of case.
Criminal Code of Queensland, s 123(1), s 592A
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
(1996) 186 CLR 541,
referred to
Clark v Ryan [1960] HCA 42
(1960) 103 CLR 486, referred to
Connelly v Director of Public Prosecutions [1964] AC 1254, referred
to
Jago v District Court (NSW) [1989] HCA 46
(1989) 168 CLR 23, referred to
Johannsen and Chambers [1996] QCA 111
(1996) 87 A Crim R 126, referred to
Pfennig v The Queen [1995] HCA 7
(1995) 182 CLR 461, followed
Pollitt v The Queen [1992] HCA 35
(1991) 174 CLR 558, referred to
The Queen v Apostolides [1984] HCA 38
(1984) 154 CLR 563, referred to
R v El-Zarw [1994] 2 Qd R 67, considered
R v Humphrys [1977] AC 1, discussed
R v McLean and Funk [1991] 1 Qd R 231, referred to
R v O'Keefe [1999] 1 Qd R 564, followed
R v Storey [1978] HCA 39
(1978) 140 CLR 364, considered
R v Z [2000] UKHL 68
[2000] 3 WLR 117, referred to
Rogers v R [1994] HCA 42
(1994) 181 CLR 251, referred to
Rozenes v Beljajev [1995] VicRp 34
(1994) 126 ALR 481, referred to
Walton v Gardiner (1993) 177 CLR 378, referred to
Weaver v Law Society of New South Wales (1979) 142 CLR, referred to
Judgment (134 paragraphs)
[1]
CRIMINAL LAW - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERJURY, FALSE SWEARING AND LIKE OFFENCES - PROOF AND EVIDENCE - accused convicted of murder of 17 month old girl in Ipswich in 1985 - conviction quashed on appeal - new evidence places accused in Ipswich at relevant time - new evidence to corroborate other witness' charges - whether evidence should be excluded - effect of passage of time - whether false testimony given knowingly is material to question at issue in proceedings.
[2]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - whether perjury charge can lie where accused acquitted and the alleged perjury is a claim of innocence - whether principles of res judicata or autrefois acquit operate to prevent retrial of facts constituting offence - whether doctrine of issue estoppel operates in criminal proceedings - whether abuse of process turns on facts of case.
Weaver v Law Society of New South Wales (1979) 142 CLR, referred to
[21]
Director of Public Prosecutions (Qld) for the respondent
[22]
[1] On 14 April 1973, the body of Deidre Kennedy aged about 17 months was found on the roof of a toilet block located near her parents house in Ipswich. She had died from strangulation and there was evidence of sexual interference. Her clothing had been removed and she had been dressed in articles of adult female underwear taken from a clothes line on a property next door to that occupied by her parents. There was extensive bruising to her head and neck, abrasions near one eye and on the upper lip. Bruises on the lower part of the left thigh were identified by medical and dental experts as marks left by human teeth.
[23]
[2] The accused was convicted in the Supreme Court of Queensland of Deidre Kennedy's murder on 18 February 1985. On 27 November 1985, the Full Court of the Supreme Court allowed an appeal against the conviction and ordered that it be quashed.
[24]
[3] Some 13 years and four months later, the accused was charged with the offence of perjury. The indictment alleges -
[25]
"That on the eighth day of March 1985 ... Raymond John Carroll in ... the trial of Raymond John Carroll for the murder of one Deidre Maree Kennedy knowingly gave false testimony to the effect that he ... did not kill the said Deidre Kennedy and the false testimony touched a matter which was material to a question then depending in the proceedings."
[26]
[4] The offence of perjury is defined in s 123(1) of the Criminal Code in the following terms -
[27]
"Any person who in any judicial proceeding ... knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding ...is guilty of a crime, which is called perjury."
[28]
[5] Mr Griffin SC and Ms Wilson, who appeared for the accused, seek a permanent stay of the proceedings on the basis that they constitute an abuse of process. It is also submitted that certain evidence proposed to be led by the Crown on the trial should either be declared inadmissible or excluded in the exercise of the court's discretion. One of the grounds of the stay application is that the prosecution is ill-founded as it contravenes the doctrines of res judicata or autrefois acquit. I will deal with this threshold point before the other contentions. But before doing so, it is desirable that I set out some of the background relevant to the submissions made on the accused's behalf.
[29]
[6] The accused gave evidence in his trial denying guilt. He asserted that he was attending a Royal Australian Air Force course at a base in Elizabeth, South Australia, at the time of the killing. His evidence was rejected by the jury and it is plain that it was not a factor which weighed with the members of the Full Court in setting aside the verdict. Kneipp J concluded that on the evidence, a jury could be satisfied beyond reasonable doubt that the appellant was not in Elizabeth at the time of the killing. There was, however, no direct evidence that the accused was in Ipswich at the relevant time.
[30]
[7] A critical link in the Crown's case associating the accused with the killing was provided by the evidence of three odontologists who expressed the view that the marks on the child's leg had been made by the teeth of the accused. Kneipp J observed "those experts who gave evidence expressed confidence in their abilities to identify teeth by reference to bruise marks". He pointed out, however, that there was evidence of views held by persons of equal expertise to the effect that such identifications should not be regarded as reliable, and that there was divergence between the experts as to which teeth were responsible for particular marks.
[31]
[8] A witness who had actually seen the bruise marks came to the conclusion in 1973 that they were not sufficiently defined to enable a definite conclusion to be reached. In light of those matters, Kneipp J concluded that a properly instructed jury could not be satisfied beyond a reasonable doubt on the evidence before it that the accused was guilty. Campbell CJ agreed with his reasons and those of Shepherdson J. Shepherdson J expressed similar views in relation to the evidence of the odontological experts.
[32]
[9] At the trial, Joy Meyers, the accused's former wife, gave evidence that the accused had, on more than one occasion, engaged in the clandestine biting of their baby daughter and that the bites were on the child's thighs. The Full Court held that evidence to be inadmissible.
[33]
The contention that the application of the doctrines of res judicata or autrefois acquit under the prosecution is an abuse of process
[34]
[10] It was submitted on behalf of the accused that where an accused person was acquitted of a criminal charge, the principles of res judicata or autrefois acquit prevented that person from being tried again in respect of the facts which constituted the offence. The offence of perjury, it was contended, did not provide an exception to this rule, except where the accused person's evidence secured or may have secured the acquittal.
[35]
[11] The accused's contentions are based on observations in a number of reported cases. One such observation is contained in the following passage from the judgment of Jacobs J in R v Storey[1] where his Honour said -
[36]
"The determination in the earlier trial that all the elements were not proven against the defendant must be accepted as a correct finding. The only possible exception to this rule is where in the later trial a defendant is charged with an offence consisting of an act or acts which caused or may have caused the jury in the earlier trial to determine an element or elements of the offence in his favour. A charge of perjury committed in the course of the earlier trial is an obvious example. The existence of this exception has been established in England by Director of Public Prosecutions v Humphrys."
[37]
[12] Strong reliance was placed also on the following passage from Weaver v Law Society of New South Wales[2] -
[38]
"Secondly, the appellant's submission is not supported by the reasoning of the House of Lords in Reg v Humphrys upon which the appellant relied. There a conviction for perjury was maintained in relation to evidence given by the accused at an earlier trial when the evidence in question had resulted in his acquittal at that trial. ... A majority of their Lordships therefore took the view that in civil proceedings issue estoppel does not apply to a judgment procured by fraud (including perjury). With respect, I accept this as a correct statement of the common law. I would only add that the principle applies with equal force to a determination or finding as it does to a judgment. On the other hand, in criminal proceedings an earlier acquittal cannot be re-litigated (Reg v Storey), though a prosecution for perjury may be maintained in respect of the giving of false evidence which secured that acquittal."
[39]
[13] Support for the proposition relied on by the accused is said to be found also in the reasons for judgment of Mackenzie J, with which McPherson SPJ agreed, in R v El-Zarw[3]. The parts of the reasons principally relied on are as follows -
[40]
"There can be no objection in principle to a person who has been acquitted of an offence being charged with perjury with respect to the gravamen of that offence if it becomes apparent from substantial evidence that he committed perjury for the purpose of obtaining the acquittal. Circumstances such as those in H.M. Advocate v. Cairns would almost universally be considered an affront to public policy and commonsense if a charge of perjury did not lie. (Cf. Director of Public Prosecutions v. Humphrys per Lord Fraser of Tullybelton at 58).
[41]
There is support for the proposition that where the Crown brings a charge of perjury against a person who has given evidence in his own defence on another charge and the gravamen of the charge of perjury is that he has sworn that he did not commit the offence, there should be acceptable evidence in addition to that called at the first trial that suggests at least prima facie that perjury had been committed in the course of obtaining the acquittal. In the absence of such evidence there is no reason why the acquittal should not be given full effect." (emphasis added)
[42]
[14] It does not appear to me that El-Zarw provides any support for the accused's contentions. Mackenzie J was addressing circumstances in which an accused had secured an acquittal after giving allegedly false evidence going directly to support his protestations of innocence. There was no issue as to whether it was necessary, in order to ground the charge of perjury, to show that the evidence must or may have caused the tribunal to acquit. What must be proved in order to establish the offence of perjury is that false evidence, given knowingly, is material to a question at issue in the proceedings. I do not read Mackenzie J's judgment as purporting to state a contrary proposition. In the first of the passages quoted above, it is observed that there can be no objection to a person being charged with perjury if he has committed perjury for the purpose of obtaining an acquittal. That was the factual situation relevant to his Honour's determination. It was not stated that the circumstances in which a charge of perjury may be brought are so confined. Plainly they are not. The existence of a particular purpose or motive is not an element of the offence of perjury.
[43]
[15] Storey was not a case which concerned the offence of perjury. In any event, I am unable to read the observations of Jacob J relied on by the accused as requiring the Crown, in a perjury case, to prove more than that the evidence the subject of complaint was material to a determination of the issue before the tribunal and that, if accepted, may have influenced the tribunal's determination. In Weaver, which was not a case concerning criminal proceedings, the Court considered an argument by the appellant that a person could not be charged with perjury in respect of his evidence in earlier proceedings against him for misconduct when the acceptance of that evidence resulted in a not-guilty finding.
[44]
[16] R v Humphrys[4], to which Mason J referred in Weaver[5], was also a case in which the evidence showed that an accused at an earlier trial had given false evidence resulting in his acquittal at that trial. Mason J's references in Weaver to the giving of false evidence resulting in or securing an acquittal may thus be seen merely as statements directed to the circumstances under consideration, rather than expressions of a principle of universal application.
[45]
[17] In my view, it is plain that none of the cases relied on to support the proposition advanced by the accused in fact does so. In R v Humphrys, it was unanimously held that the doctrines of issue estoppel and res judicata have no place in the English criminal law, and that the doctrines of autrefois acquit did not operate so as to prevent an accused who gave evidence on a prior criminal trial from being prosecuted for perjury in respect of evidence given at that trial. It was pointed out in various judgments that the doctrine of autrefois acquit had no application in circumstances in which an accused person was charged with the giving of perjured evidence in an earlier trial, as the offence of perjury was not the same or substantially the same as the offence the subject of the earlier trial.[6]
[46]
[18] Viscount Dilhorne made it plain in the following passage from his reasons of Humphrys[7], that a convicted accused may be prosecuted for perjury in respect of evidence given by him or her in the course of the trial which resulted in the conviction -
[47]
"If the law be that a defendant who has secured his acquittal or the determination of an issue in his favour by perjury cannot be prosecuted for that offence, there is no sanction for his breach of his oath, though if his perjury does not secure his acquittal or the determination of an issue in his favour, neither res judicata nor issue estoppel would prevent his being prosecuted for that offence. If the defence put forward is a false alibi and it succeeds, the defendant will not be liable to prosecution for perjury though witnesses who give false evidence in support of the alibi will be liable to prosecution for that offence for they will not be able to rely on res judicata, issue estoppel or the acquittal.
[48]
[19] In the above passage, his Lordship points to the oddity of a conclusion that a perjured accused who fails to obtain the intended object of his or her perjury can be prosecuted, but a successful perjurer cannot.
[49]
[20] R v Humphrys does establish that in some cases the prosecution of a person acquitted of a criminal charge on his or her trial for perjury in relation to evidence given by the person at the trial may amount to an abuse of process. In the view of Viscount Dilhorne, though, a conclusion that such a prosecution constitutes an abuse of process would not be one at which a court would readily arrive. He said[8]-
[50]
"I regard perjury as a serious offence and in my view where it can be proved to have occurred, it cannot ordinarily be said to be oppressive or vexatious or an abuse of process for a prosecution to be instituted."
[51]
[21] He expressed the view that the power to stop such a prosecution "should only be exercised in the most exceptional circumstances". [9]
[52]
[22] Lord Hailsham of St Marylebone in the course of summarising his conclusions dealt with the circumstances in which a charge of perjury could be brought against an accused for evidence given by him in the course of his trial as follows [10] -
[53]
"(8) Where the second charge consists in an allegation that the accused in the first charge has committed perjury in his evidence given on his own behalf in his defence on the former charge, the mere fact that some of the evidence brought in support of the charge of perjury is identical with evidence given in the first charge and inconsistent with innocence on that charge does not preclude the Crown from adducing that evidence or asserting its truth where it is accompanied by other evidence in support of the charge of perjury but (9) where the evidence is substantially identical with the evidence given at the first trial without any addition and the Crown is in substance simply seeking to get behind a verdict of acquittal, the second charge is inadmissible both on the ground that it infringes the rule against double jeopardy and on the ground that it is an abuse of the process of the court whether or not the charge is in form a charge of perjury at the first trial."
[54]
[23] The approach of Lord Salmon may be thought to be somewhat different to that of Lords Dilhorne and Hailsham. He said[11]-
[55]
"There are, however, exceptional cases in which prosecutions for perjury are fully justified after an acquittal, for example, cases in which a man acquitted of a crime subsequently earns substantial sums of money by writing articles for the Press explaining how in fact he committed the crime and deceived the jury by the ingenious lies he had told in the witness box: see H.M. Advocate v. Cairns, 1967 J.C. 37."
[56]
The other members of the Court did not find it necessary to explore the factors, if any, which might constitute the bringing of a perjury prosecution in such circumstances an abuse of process. In my view, the approaches taken by Lord Dilhorn and Viscount Hailsham are more consistent with the expressions of principle in R v Z[12] than that of Lord Salmon and with the approach taken in R v El-Zarw. I accept as an accurate statement of principle the above summary of conclusions by Lord Hailsham.
[57]
[24] In R v Storey a majority concluded, contrary to Humphrys, that there was scope for a limited application of the doctrine of issue estoppel in criminal proceedings. However, neither in this nor in other cases to which I have been referred has doubt been cast on the correctness of the observations in Humphrys on the circumstances in which a charge of perjury might be brought, notwithstanding the acquittal of the accused in a prior trial. In Rogers v R[13], the Court, by a majority, concluded that issue estoppel had no application in criminal proceedings. Humphrys was referred to by Mason J with approval in Weaver v Law Society of New South Wales.
[58]
[25] In R v El-Zarw[14], Humphrys was cited at length and with apparent approval in the judgments of Ambrose J and Mackenzie J.
[59]
[26] For the above reasons, the accused's contention that the doctrines of autrefois acquit or res judicata prevent the bringing of the perjury charge fails. I will now address the other arguments advanced on behalf of the accused.
[60]
The bringing of the perjury charge constitutes an abuse of process as the evidence proposed to be adduced by the Crown is not "substantially different" to that adduced on the accused's first trial and/or is not "acceptable evidence in addition to that called at the first trial".
[61]
[27] The above quotations are extracted from the judgments of Ambrose J and Mackenzie J, respectively, in El-Zarw. They were tests applied in the circumstances of that case to gauge whether or not an abuse of process existed. Neither judgment, understandably, suggested that the test propounded in it was of universal application. Whether an abuse of process exists will always need to be determined by reference to the particular facts of the case under consideration. Having said that, in my view, both tests are satisfied here. Also, there is nothing in the case which the Crown proposes to present which is suggestive of an abuse of process. It is plain that the Crown is not attempting merely to re-present, in substance, the evidence led on the original trial.[15]
[62]
[28] A weakness in the Crown case on the original trial was the lack of direct evidence placing the accused in or about Ipswich at the time of the killing. The Crown case in that regard, in broad terms, relied on the evidence of class mates of the accused at his course at Edinburgh, to the effect that the accused left the course before its conclusion and did not travel back to Queensland from the course with course participants who came from Queensland. There was also evidence that the accused was not in the class photograph taken on passing out. A Crown witness, Desley Hill, who was not available to the Crown at the time of the trial, has sworn to seeing the accused in Ipswich on the day of the murder. She professes an actual recollection of meeting with the accused on that day and of being able, by reference to a television report of the killing, to fix the date.
[63]
[29] The Crown's case also has significantly different and stronger evidence in three other respects: there is now an alleged confession; further similar fact evidence of the accused's biting his own infant child is available and the Crown has different and more consistent expert odontological evidence. All such evidence is the subject of challenge and is discussed in more detail below. However, for present purposes, it is sufficient to note that the Crown case is far from being an attempt to represent the evidence led in the murder trial and thus go behind the acquittal on appeal.
[64]
The evidence of Trevor Swifte should be excluded in the exercise of the Court's discretion so as to ensure a fair trial.
[65]
[30] Swifte has sworn that whilst remanded in custody at Brisbane prison he met the accused, who was awaiting trial for murder, and had conversations with him in the course of which the accused confessed to having killed Deidre Kennedy.
[66]
[31] The factors relied on to support the application are -
[67]
(a) the general unreliability of a jailhouse confession made some 16 years ago and not reported to police until 1997;
[68]
(b) the dangers identified in Pollitt v The Queen[16] of the ease of fabrication of such evidence, and the difficulties confronting an accused in rebutting it;
[69]
(c) because of the 16 year delay since the alleged confessions, it cannot be asserted that the information could only to have come to Swifte by means of communication from the accused;
[70]
(d) in his evidence at committal Swifte used the lengthy time lapse to excuse "some accuracies and lack of detail at his own evidence", thus making rebuttal even more difficult;
[71]
(e) at his committal Swifte asserted that he told a prison guard of the confession in 1984. That person is now dead and the accused does not have the opportunity of calling him to challenge the account. Swifte says that he also spoke to the accused after his conviction for murder when the accused said "Yeah, well they got me".
[72]
[32] It is not contended on behalf of the accused that the mere fact that the alleged confession is one allegedly made by an accused person to a fellow prison inmate is sufficient to justify its exclusion. There is ample authority for potential prejudice to an accused person occasioned by such evidence to be overcome by careful direction to the jury. Authorities such as Rozenes v Beljajev[17] and R v McLean and Funk[18] suggest that this is the appropriate means of ensuring a fair trial in the circumstances under consideration.
[73]
[33] Swifte gives a reasonable explanation for his delay in coming forward with the evidence, namely that he was, until recently, unaware that the accused's conviction for murder had been overturned. The evidence is potentially extremely important and it is not suggested that Swifte has been shown to have a motive for his recent repetition (assuming that the alleged confession was first reported by Swifte as he asserts) of the alleged confession. Furthermore, it is not suggested that the Crown was at fault in not calling Swifte to give evidence in the murder trial.
[74]
[34] In Jago v District Court (NSW)[19], Mason CJ said:
[75]
"The continuation of processes which will culminate in an unfair trial can be seen as a `misuse of the Court process' which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. ... [T]he power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed"
[76]
"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial ... . At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed ... will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused ... . In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare ...".
[77]
[35] Reasons for judgment of Mason CJ in Jago were referred to with approval by Mason CJ, Deane and Dawson JJ in their joint judgment in Walton v Gardiner[21] where their Honours observed -
[78]
"As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice".
[79]
[36] The above observations, although directly relevant to the accused's application to stay the proceedings, are of relevance also to this part of the accused's application. A ruling against the Crown on the parts of the application concerning the similar fact evidence, the evidence of Mrs Hill and that of Mr Swifte would, most probably, result in the prosecution not proceeding. Also, the accused's argument that a stay should be granted on the grounds of abuse of process would be strengthened considerably.
[80]
[37] It is true that the accused has lost the opportunity of inquiring into the truth, or otherwise, of the assertion that the confession was reported to a warder. However, the accused is in no worse a position in relation to the alleged confession than he would have been had the witness not asserted that he had reported the incident to a person in authority. It is also unlikely that had the confession surfaced at a much earlier date, the accused would have been able to adduce evidence in relation to other persons or circumstances which cast doubt on the reliability of the witnesses' account. That is the reason why it is stressed in cases such as Pollitt that particular care needs to be taken by trial judges in the giving of directions in respect of jailhouse confessions.
[81]
[38] Conducting the balancing exercise required by the above authorities, and having regard to the role appropriate directions may play in safeguarding the accused's interests, it does not appear to me that a stay should be ordered on this ground.
[82]
The evidence of Desley Hill should be excluded in the exercise of the Court's discretion because it is too stale to permit a fair trial and the evidence is not "substantial and acceptable" new evidence.
[83]
[39] This application is supported by the submission that two other witnesses who, on Hill's account, were in her house when the accused allegedly visited her on the day of the killing, are now dead and the opportunity of testing her account has thus been lost.
[84]
[40] There can be no doubt that the accused has lost the opportunity of pursuing lines of inquiry which, conceivably, may have resulted in doubt being cast on Hill's evidence. (Of course, such inquiries may have resulted in confirmation of the accuracy of Mrs Hill's version of events.)
[85]
[41] In Brisbane South Regional Health Authority v Taylor[22], McHugh J, after stating that the enactment of time limitations has been driven by a general perception that the quality of justice deteriorates with delay said -
[86]
"Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, `what has been forgotten can rarely be shown'. So it must often happen that important, perhaps decisive, evidence has disappeared without anybody now `knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose."
[87]
[42] Other circumstances of prejudice are listed by Fitzgerald P in Johannsen and Chambers[23].
[88]
[43] I am mindful of considerations such as these, but nevertheless, find against the accused on these contentions. The evidence of Desley Hill is within short compass. The evidence is new, but the reasons for its lateness have been appropriately explained, and are not challenged. The evidence is significant and cogent.
[89]
[44] Again, the balancing act required by the authorities leads me to conclude that the evidence should not be excluded.
[90]
The similar fact evidence of Joy Greinter (nee Meyer) and Diane Ferguson should be excluded.
[91]
[45] It is submitted that the similar fact evidence of Mrs Greinter, having been ruled inadmissible by the Court of Appeal, should not be relied on even though a change in the law since the Court of Appeal decision would now render such evidence admissible. It follows, it is said, that the new similar fact evidence of Diane Ferguson should not be admitted as being "of exactly the same effect as Meyer's evidence", and thus "not substantially different to the case at the murder trial". Diane Ferguson has sworn that she worked at a canteen on the Royal Australian Air Force base in Darwin in 1975 where she met the accused. She asserts that she saw his child on a number of occasions with bruise marks on its body which she identified as human bite marks. She claims to have been informed by Mrs Greinter that, the accused has bitten the child and that, having regard to that information, she asked the accused, "how could you do such a thing"? He responded, "well", and shrugged his shoulders. She first made a statement to police in December 1985.
[92]
[46] In my view, the evidence is admissible in accordance with the principles discussed in Pfennig v The Queen[24] and R v O'Keefe[25].
[93]
[47] On the murder trial, Mrs Greinter was cross-examined to the effect that she had fabricated her evidence of the accused's bite marks. Her evidence suffered from the disadvantage that she had made no complaint to any third person at any stage concerning the alleged bite marks, and evidence of child abuse failed to surface during divorce proceedings between the accused and Mrs Greinter.
[94]
[48] The further evidence of Ms Ferguson provides cogent evidence of biting which serves to corroborate that of Mrs Greinter. The evidence may well be thought by a jury to have considerable probative value when assessed in the light of the other evidence the Crown proposes to call. Consequently, I do not accept the criticisms of this evidence made on the accused's behalf. Also, once it is accepted that there is no abuse of process involved in the bringing of the Crown case, it must be accepted that, in general, there can be no objection to the Crown's calling evidence which is substantially the same as evidence given in the earlier trial.
[95]
[49] The staleness of this evidence is an important factor, but I decline to exercise any discretion to exclude it for generally similar reasons to those already advanced. Generally, the same considerations apply to the evidence of another witness, Mrs Bufton.
[96]
The scientific evidence is inadmissible or should be excluded in the exercise of a discretion.
[97]
[50] The submissions on behalf of the accused divide the relevant scientific evidence into two categories: evidence concerning digital analysis technique; and the interpretation of the results. The witness whose evidence is under challenge in respect of matters of digital analysis is John Garner, a Senior Sergeant of police with expertise in the use of computers and, in particular, digital imaging techniques. The evidence to which objection is taken is proposed evidence in which the witness has scanned photographs of bruising on the thigh of Deidre Kennedy onto a computer. He has also scanned onto the computer images of a cast of the accused's teeth and various measuring devices. After scanning, he has made adjustments to the images on the computer to correct distortions in the scanning process. He has then, by means of software developed and/or adapted by him, a facility for transposing images of the teeth onto images of the bruising, with a view towards attempting to show correspondence between the teeth and marks within the bruising. Furthermore, Mr Garner used a process to enhance the photographic images so as to assist in the process I have just described.
[98]
[51] It is submitted that the evidence of Mr Garner does not meet the test of admissibility for expert opinion evidence formulated in Clark v Ryan[26]. The submission also depends upon the contention that the subject evidence is a species of opinion evidence which should be rejected because the validity of its underlying premises is untested and unproven.
[99]
[52] I am unable to accept these submissions. Mr Garner's evidence, insofar as it involves the improvement of images of the subject bruising through the use of up-to-date photographic techniques, was not the subject of specific challenge, and is plainly unobjectionable. Nor in my view is there any sustainable ground for challenging the admissibility of the remainder of the evidence. In essence, the witness is using up-to-date computer technology to create, manipulate and transpose images whilst taking appropriate measurements. He has created and is using a more technologically advanced means of comparing bite marks in the bruises with reconstructions of the accused's teeth, than the use of the tracings on acetate relied on by the experts at the original trial. As Mr Bryne QC pointed out in his submissions, the transfer of the photographs to the digital platform merely enhances the ability of the experts (and jurors) to compare the relevant images.
[100]
[53] Part of the complaint related to the use by the witness of what he described as "an immersion technique". All that appears to be involved in the technique is the photographing of protruding parts of the dentures as they are progressively immersed in ink (so as to show the most prominent features of the teeth) and the transposing of those images onto the computer. The accuracy of the computer images produced by Mr Garner will, of course, be able to be assessed and challenged on the trial.
[101]
[54] There is evidence that, by the use of the procedures intended to be used and put in evidence by Mr Garner, the accuracy of the opinions expressed by the odontological experts can be materially enhanced. That is relevant not only to the admissibility of Mr Garner's evidence, but to the admissibility of the evidence of the other experts.
[102]
[55] The submission that all odontological evidence which relies on the digital evidence technique should be ruled inadmissible is thus be rejected.
[103]
It is further submitted that the evidence of the odontologists based on the digital analysis or on physical examination of the cast of the accused's teeth and the photograph of the bruises on the child, regardless of the computer enhancements, should not be admitted to the extent that the odontologists give the opinion that the bite marks are capable of identifying the accused as the biter as opposed to not excluding him.
[104]
[56] The submissions accept that the study of bite marks and consequent identification of persons responsible for such marks falls within a field of expertise in respect of which it is permissible to give expert evidence. However it is submitted that the field of expertise is not such as to recognise "positive identification of persons responsible for bite marks". That submission is not supported by the evidence before me. There is cogent (and thus far unchallenged) evidence of an accepted point of view amongst forensic odontologists in this country that identification of individual's teeth is able to be made through the use of bite marks. Accordingly, this submission is also rejected.
[105]
The prosecution should be stayed on the grounds that having regard to the lapse of time between events in question in the proceedings and the date of trial, it is impossible for the accused to have a fair trial.
[106]
[57] In support of his submissions in this regard, the accused relies heavily on the judgments of the majority in Johannsen and Chambers.
[107]
[58] I have discussed the question of the effect of delay in relation to the evidence of individual witnesses. It is possible that the great length of time that has elapsed since 1974 may, having regard to the considerable number of witnesses to be called, magnify or increase prejudice suffered by the accused in at least some of the respects referred to above. It is also possible, and perhaps even more likely, that delay will produce an effect beneficial to the accused. Memories of the witnesses will tend to be more fragile. The jurors will be conscious of the time lapse and the accused's counsel will be able to place possible prejudicial effects of the delayed evidence under a spotlight. A considerable body of the evidence will, insofar as it is prejudicial to the accused, be at best for the Crown, frozen at the time of the trial. Any departure by witnesses who gave evidence at the trial from that evidence will have an obvious adverse impact on credibility.
[108]
[59] The most critical evidence in the case would appear to me to be the expert evidence, the identification evidence of Mrs Hill, and the similar fact evidence. I have discussed each of those categories of evidence above and my conclusions in respect of the application to disallow such evidence are relevant to my determination on this broader application. I have discussed, in that context, the principles applicable to this part of the accused's application.
[109]
[60] I am not persuaded that the matters on which the accused relies are such as to make this such "an exceptional or extreme" case as to warrant a stay. It is plain though that considerable care will need to be given to the framing of appropriate directions to take into account the time elapse since 1974 and its bearing on the quality and extent of the evidence to be led.
[110]
The prosecution should be stayed unless the Crown calls Sims and Brown.
[111]
[61] Dr Sims and Dr Brown were odontologists who gave evidence at the trial. Their evidence was to the effect that each was able to identify bite marks on the child's thigh as being those of the accused. Their opinion was that the bruises on the higher part of the photograph of the thigh were caused by the upper teeth, whereas the experts now proposed to be called, are of the opinion that such bruises were caused by the lower teeth. Sims is a resident in England. At the time of the trial, he was the senior lecturer in forensic odontology in the Department of Forensic Medicine of the London Hospital Medical College, University of London. Dr Sims gave some evidence on the trial useful to the accused in respect of the extent to which odontologists of good standing agree on whether a person can be positively identified from bite marks on a body.
[112]
[62] Dr Brown is now unavailable to give evidence through ill-health. The Crown does not wish to call Dr Sims. It is submitted that in circumstances where the Crown has relied on the evidence of these experts in order to obtain a conviction for murder, it would be an abuse of process not to recall them, and to instead rely on other experts who give evidence which differs from that of Dr Sims and Dr Brown in significant ways. It is pointed out that the accuracy of the opinion formed by the new experts will be an issue on the trial. Of considerable relevance will be the way and extent to which the opinions of the new experts depart from those of Drs Sims and Brown. If the latter are not called, then it is submitted, the accused's ability to challenge the expert evidence will be rendered more difficult and in an unfair way.
[113]
[63] There is clear authority for the proposition that the Crown prosecutor alone bears the responsibility of deciding who should be called as witnesses for the Crown and that a trial judge cannot direct the prosecutor to call particular witnesses: The Queen v Apostolides[27]. There are substantial reasons why the Crown cannot call Dr Brown and does not wish to call Dr Sims. Dr Sims's evidence, if he adheres to the views expressed on the trial, would conflict with the evidence of the experts that the Crown now proposes to call. They are all well qualified, and are Australian residents. Their approach is consistent and, to a degree, is able to be tested and verified by digital imaging. Digital imaging serves to disprove part of the opinions formerly expressed by Drs Sims and Brown.
[114]
[64] The fact that leading experts in the field have previously expressed views which depart from those of the experts put forward on the new trial can readily be placed before the jury. No doubt it will also be borne home forcefully to the jury that the Crown was not prepared to expose Dr Sims for cross-examination, and he was thus unable to defend his previous stance or to be given an opportunity to resile from it.
[115]
[65] In the circumstances, I do not regard it as an abuse of process or as misconduct for Drs Sims and Brown not to be called, and I do not propose to order a stay. I acknowledge that the absence of Drs Sims and Brown, conceivably, may give rise to an element of unfairness depending on how the evidence on the case unfolds. That is a matter which can be kept under review so as to ensure that no miscarriage of justice takes place.