[2015] NSWCA 303
Mallard v The Queen (2005) 224 CLR 125
[2005] HCA 68
R v Garofalo [1999] 2 VR 625
Source
Original judgment source is linked above.
Catchwords
[2015] NSWCA 303
Mallard v The Queen (2005) 224 CLR 125[2005] HCA 68
R v Garofalo [1999] 2 VR 625
Judgment (3 paragraphs)
[1]
Judgment
On Friday 4 May 2018, I made orders resolving part of a dispute between the accused and the Commissioner of Police ("the Commissioner"). The dispute arose out of a subpoena directed to the Commissioner seeking production of the criminal histories of a number of prosecution witnesses. I made orders that access to the documents relating to three of the witnesses be granted to the parties. The argument was adjourned for further submissions concerning the remaining witnesses until Monday 7 May 2018. However, on Friday afternoon, my Associate was advised that the remaining documents had been provided to the parties on an informal basis. It became unnecessary to resolve the outstanding dispute between the parties. In making the orders, I made reference to the specific circumstances of the three witnesses. [1] These are my more general reasons for the orders made on Friday 4 May 2018.
The accused is charged with murder, conspiracy to murder and (in the alternative to conspiracy) solicit to murder. The case against him includes a large number of "civilian" witnesses, many of whom are expected to give (or have given) controversial evidence about his treatment of the alleged victim of the murder offence. This evidence is relevant both to the murder charge itself and to a tendency and context case that the prosecution seeks to establish. Part of the accused's case is that a number of the witnesses assaulted the deceased and that these assaults caused injuries to the deceased. Some of the witnesses are known (by the accused, and presumably the police and the Crown) to have mental health, drug and alcohol issues. Without meaning to disparage the witnesses, it is clear that many live marginalised, difficult and chaotic lives on the fringe of society.
R v Jenkin [2018] NSWSC 697 | Case summary | Zoe
The trial was listed to commence as a joint trial on Monday 30 April 2018 in Wollongong. There were a number of pre-trial issues ventilated on 13, 20 and 24 April 2018: see for example R v Jenkin and Ors [2018] NSWSC 547. After orders were made separating the accused from two alleged co-offenders, leave was granted to make a belated application for a trial by Judge alone. Ultimately, the Crown consented to this application and a trial by judge order under s 132 of the Criminal Procedure Act 1986 was made on Tuesday 1 May 2018. [2]
The trial commenced on Wednesday 2 May 2018.
Meanwhile, in accordance with its duty of disclosure, the Crown provided the accused's lawyers with the criminal histories of five of the so-called civilian witnesses. It is unclear when this occurred but presumably it was in advance of the trial. Then, on 26 April 2018 - that is, one clear working day before the commencement of the trial - the accused filed a subpoena seeking "all Criminal Records" of thirty named witnesses "to be called in the trial of R v Mark Kenneth Jenkin". The subpoena was directed to the NSW Commissioner of Police and I assume it was served on 26 or 27 April 2018. On its face, the subpoena was returnable in Sydney on Friday 4 May 2018. By that date, the trial was into its fifth day and was being conducted in a city about a hundred kilometres to the south of Sydney.
The first observation that must be made is that the filing and service of the subpoena was tardy in the extreme. Further, the accused's legal team could have requested that the Director of Public Prosecutions disclose the criminal histories at a much earlier time. I am not sure whether this was done. As I have said, there had been disclosure in relation to five of the thirty witnesses nominated in the subpoena. I will return to the Crown's duty of disclosure because it is relevant to the issues raised by the Commissioner in resisting the obligation to comply with the subpoena.
By the time of the return date, three of the witnesses named in the schedule had already been called in the trial. One of them (A), had been excused having said in cross-examination that he had no criminal record for violence. This, as things turned out, was not correct. He had two convictions for assault. Another witness (B) was not excused because counsel for the accused pressed for disclosure of his criminal record before completing the cross-examination. The Crown Prosecutor said that he did not know whether B had a criminal record (presumably because it had not been disclosed to the Crown by investigating police) and, quite reasonably, said that the matter was now one between the accused and the Commissioner. However, he indicated he well understood the position taken by counsel for the accused. B was supposed to return to Court on Monday 7 May 2018. He didn't. He was ultimately re-called on Tuesday 8 May 2018. The trial was disrupted and the evidence was elicited in a disjointed way. The third witness (C) was in cross-examination at the end of Thursday 3 May 2018 and his evidence was adjourned until Monday 7 May 2018 to allow the subpoena issue to be resolved. Again, the trial was disrupted.
I was first advised of the issue concerning the subpoena on 2 May 2018. [3] Counsel for the accused said that the Commissioner's lawyers had raised objections to complying with the subpoena, had sought particulars of the forensic purpose behind the subpoena and had drawn attention to Lowery v Insurance Australian Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303. I gathered it was being suggested that the accused and his lawyers were undertaking what is often described in such cases as a "fishing expedition". I arranged with the Registrar to have the subpoena returnable before me in Wollongong on Friday 4 May 2018. The Commissioner was represented by Mr Regener of Makinson d'Apice and Mr O'Brien appeared for the accused.
By the time the case came before me, Mr O'Brien had provided a table to Mr Regener particularising the legitimate forensic purpose in respect of twenty two of the thirty witnesses nominated in the subpoena. I was told this was provided on Thursday 3 May 2018 at about 9:30pm. The production of eight of the criminal histories was not pressed, including those relating to the five witnesses in relation to whom the Crown had already made disclosure. As a result of the provision of the table and the narrowing of the subpoena, the Commissioner's position had softened somewhat. Even so, the Commissioner still resisted complying with the subpoena and opposed an order granting access to the documents by the accused.
The first argument, couched in different language, was an assertion that the accused was on a fishing expedition. As Mr Regener put it: [4]
"On what basis did he say that he [that is, the accused or his lawyers] had any reason to think that these people had criminal records?"
The argument continued that, even if it could be shown that the accused had grounds to suspect the witnesses had criminal histories, the Commissioner was still entitled to know the forensic purpose in seeking the records. It was submitted that the fact that a person has a criminal history does not necessarily mean that their credibility is adversely affected. By way of example, it was submitted: [5]
"… if a person is a drug dealer that doesn't make them a dishonest person … or just because someone's a drug dealer or just because someone's been in a fight before and convicted of common assault, doesn't mean that they should have their criminal history laid bare to a court."
Mr Regener explained that the Commissioner took seriously his responsibility in maintaining the records and said "these citizens of New South Wales who have an entitlement to their records to remain private". [6]
Having made those submissions to explain why the Commissioner did not simply comply with the subpoena, Mr Regener conceded that the table provided by the accused went a long way towards establishing grounds for a belief that the witnesses had a criminal history and a legitimate forensic purpose in gaining access to the records. When I explained the situation relating to the three witnesses who had already given evidence, Mr Regener did not seek to be heard further in relation to producing the documents. [7] Even so, while the documents were in the courtroom and available to be produced to the Court, the Commissioner resisted access being granted to the parties in the trial or, at least, the accused and his lawyers.
Mr Regener proposed two alternatives. The first was for the documents to be produced to the Court but not made available to the parties "until such time as in the course of cross-examination it becomes relevant for them to be seen by the accused". [8] The second proposal was that Mr Regener "redact as much of the material as is not relevant to making false statements, dishonesty on the face of the offence". [9] It was suggested that offences of violence might also be left visible on the redacted records given that part of the accused's case is that other people may have visited violence upon the deceased.
Mr O'Brien submitted that the accused was entitled to the criminal histories of the witnesses. He submitted that this formed part of the Crown's duty of disclosure. He relied on the observations of Ormiston JA in R v Garofalo [1999] 2 VR 625; [1998] VSCA 145 at [63]:
"Notwithstanding the absence of direct authority in this country relating to the obligation to disclose prior convictions, I would conclude, by reference to considerations both of authority and principle, that at the least there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses, though the precise manner in which this duty should be worked out and applied may depend upon the court in which the prosecution has been brought, the means of obtaining that information and possibly other circumstances relevant to the individual case, as analysed below."
Both the Crown Prosecutor and the Commissioner noted, no doubt correctly, that there is a distinction between the issues that may arise under the Crown's duty of disclosure and the issues that arise when an accused person serves a subpoena to the Commissioner of Police. There are some obvious differences: the parties are different and the procedures and remedies are different. However, it is difficult to imagine a case where it could sensibly be asserted that an accused person had no legitimate forensic purpose in seeking production of material that ought to have been subject to Crown disclosure.
Further to that, it has long been accepted that "it is appropriate to adopt a more liberal approach to such matters in a criminal case" and that "special weight had to be given to the fact that the documents might assist an accused person whose liberty is at stake": R v Saleam (1989) 16 NSWLR 14 at 17-18 citing Alister v The Queen (1984) 154 CLR 404 at 455-456 and Sankey v Whitlam (1978) 142 CLR 1 at 42, 61-62. Mr Regener properly acknowledged this.
There are a number of problems with the initial stance taken by the Commissioner.
The suggestion that an accused person is required to establish that they know, or have grounds to suspect, that a witness may have a criminal history is unrealistic and misconceived. There may be cases where an accused person knows that a particular witness has a criminal history. However, that is likely to be a minority of cases. The absence of such knowledge or belief does not turn a legitimate forensic investigation into a fishing expedition. The circumstances of a criminal trial are far removed from a case like Lowery v Insurance Australia Ltd where an insurer in civil litigation was criticised for undertaking a fishing expedition by which it sought to "trawl speculatively" for documents that may possibly impugn a witness's credit. Included in the net cast by the insurer in Lowery v Insurance Australia Ltd were "all criminal records" relating to certain people; hence the case's superficial similarity to the circumstances pertaining here. However, I am not aware of any authority where the remarks of Basten JA (at [18]-[19]) or Emmett JA (at [44], [52]) in Lowery v Insurance Australia Ltd have been applied to a criminal defendant seeking access to the criminal histories of the witnesses to be called by the prosecution.
There is also a fundamental misconception in the implication that the accused is required to establish that the criminal history has some particular and direct relevance to the issue of credibility. As was posited in argument, the fact that a witness has a criminal record that is not, on its face, relevant to their credibility may not be the end of the inquiry. To use Mr Regener's examples, a witness may have a record for assault or drug dealing. That may or may not, of itself, bear upon their credibility. However, further investigation may establish that the witness lied about the issue when confronted by police or in a formal interview. The outcome of the proceedings may also establish matters relevant to the witness's credibility. An example emerged in this trial after the present issue was resolved. During the course of the evidence of a witness (D), her criminal record was called for and produced. (I note in passing that this was able to be done in less than 10 minutes). The sentencing outcomes demonstrated that D had long term psychiatric issues and that a number of criminal offences had been dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990.
I agree with the observations of Gillard J in R v Mokbel (Ruling No 1) [2005] VSC 410 at [71]:
"It follows that any document or thing which impinges upon a witness's credibility is important to the accused's defence. Defence lawyers are in a far better position than a judge to make an appraisal of the value of information contained. There is a fine line between fishing for information and knowing or suspecting that there is information in the documents relevant to the credibility of a witness. A more liberal approach to the question is required in a criminal proceeding. Experience shows that full examination of documents by defence counsel sometimes produces relevant material for cross-examination, material which may to others not fully conversant with all the factual matters, be not important."
The suggestion that the records could be produced to the Court but not disclosed to the defence until "the groundwork was laid" and/or it "became relevant" is, generally, unworkable in a criminal trial. The trial Judge (especially in a trial being conducted without a jury) cannot be placed in the position of making such determinations, which are, at their core, forensic choices. The Judge is not privy to all of the material in the prosecution and defence briefs. The Judge cannot predict, or influence, the course that counsel might choose to take in examining a witness. Equally, the forensic choices that counsel might take may be influenced by their knowledge of the criminal history of the witness they are examining. While Hunt J in R v Saleam acknowledged at [18D] that the forensic purpose may "not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time", this is a different thing to suggesting that the trial Judge might determine the issue for themselves as the trial progresses.
In the present case, counsel for the accused was called upon to cross-examine the witness A without access to his criminal history. Counsel indicated he was unsure whether to ask questions about the subject but ultimately the following exchange occurred: [10]
"Q. If I said to you that you punched Dower to the head, he'd also similarly say that that would be false?
A. Exactly.
Q. Because you say it would be out of character?
A. For who?
Q. It would be out of character?
A. For who?
Q. For you?
A. Yes.
Q. Had you any convictions for assault or any other--
A. No, I've raised five children successfully.
Q. Sorry?
A. I've raised five children successfully."
As it turns out, A has two convictions for common assault (Ex 1). Once the criminal record was disclosed to the accused, following one of the rulings subject of this judgment, it was necessary for A to be recalled to challenge his evidence. [11] While cross-examining on the first occasion, counsel was at a disadvantage at each step. He was forced to ask questions relevant both to the issues in the trial (whether A struck the deceased) and A's credibility with no prior knowledge of information that was available to investigating police and readily available to the Crown. Counsel was unable to challenge the evidence of A that he had no criminal history for violence at the time it was given.
As I understand the Commissioner's submissions, this kind of process was appropriate in respect of each witness. In other words, the criminal record should be produced to the Court (but not to the parties), the accused was to cross-examine not knowing the contents of the record and then, if the occasion arose in the course of cross-examination, the trial Judge could determine whether to grant access. In most cases, such a process is unworkable, creates a substantial risk of unfairness and is apt to disrupt the trial.
The Commissioner also relied on the right of the witnesses to privacy. I accept this submission was made in earnest and that there may be cases where this is a significant factor militating against granting access to criminal histories to the parties involved in litigation. However, it is not a recognised head of public interest immunity or privilege (which I acknowledge are not closed) and it must be remembered that certain rights are forfeited when a citizen commits a criminal offence. In an extreme case, the citizen's right to liberty may be lost. A person's right (if that is the correct word) to keep their criminal history a secret may lawfully be infringed in any number of ways, usually involving express or implied consent. This might occur when they are travelling overseas or applying for particular employment. I can see no basis to find that, as a general rule, a witness's right to privacy in respect of their criminal history is a basis upon which to deny an accused person access to material that may assist them in their defence.
I return to the question of the Crown's duty of disclosure. As noted above, in R v Garofalo, Ormiston JA held that the duty of disclosure extends to disclosure of previous convictions of prosecution witnesses. Charles JA agreed with Ormiston JA. Tadgell JA said he "should hesitate to conclude that a common law duty always and inevitably rests on the Crown to make a general disclosure of all previous convictions of witnesses for the prosecution." [12] However, his Honour otherwise agreed with the reasons of Ormiston JA.
The decision in R v Garofalo was mentioned in passing in R v Reardon (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [52] but the precise content of the principle, particularly as expressed in such absolute terms by Ormiston JA, was not considered. The observations made in R v Garofalo were also mentioned in SI v R [2007] NSWCCA 181, Cornwell v R [2010] NSWCCA 59 and R v Lipton [2011] NSWCCA 247. In none of these cases were the remarks of Ormiston J either adopted or criticised.
The NSW Department of Public Prosecutions Guidelines were considered by the Court of Criminal Appeal in R v Lipton. In that case, where a conditional stay of sentencing proceedings was upheld due to a failure of disclosure, the Court also referred to the judgment of Simpson J (as her Honour then was) in R v Grey [2000] NSWCCA 46. (This was a dissenting judgment however her Honour's view prevailed in the High Court: see Grey v The Queen [2001] HCA 65.) In relation to a letter of comfort provided to a critical witness which was not disclosed to defence counsel, Simpson J made the important observation at [39] that:
"In any case, the primary obligation lay on the prosecution to disclose the letter, not upon the appellant's lawyers to engage in a complicated detective exercise."
McColl JA agreed in R v Lipton, saying "there was no reason why the defence in a criminal trial should be obliged to fossick for information to which it was entitled": R v Lipton at [119]. Her Honour referred to what was said by the High Court in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [17] and [66].
The terms of Guideline 18 do not reflect the statement of principle expressed by Ormiston JA in R v Garofalo. Guideline 18 does not refer specifically to the disclosure of criminal histories. It provides a certain amount of flexibility and its operation is dependent on provision to the Crown of relevant information by the investigating police. It notes that "procedures are in place" for certification that this has occurred. It is to be recalled that R v Grey and Mallard v The Queen were cases where the failure of disclosure occurred at the first stage - the police had not told the prosecutor about the relevant information. McColl JA made it clear in R v Lipton at [119] that a failure of disclosure may occur whether it is the police or the prosecutor who fail to disclose material that may assist the defence.
As I noted earlier, an issue arose in the present case when the Crown Prosecutor said he was not aware whether a particular (and important) witness had a criminal record. It seems that a number of the records ultimately provided to the accused were not disclosed to the prosecutor in advance of the trial. It is not necessary to do more than make note of this, and to observe that at least some of the records finally obtained under the subpoena constituted material that should have been disclosed to the legal representatives of the accused without them having to seek it out. I hasten to say, as I said in argument, this comment should not in any way be interpreted as a criticism, express or implied, of the Crown Prosecutor or his instructing solicitor.
It is unnecessary to adopt the absolute terms of the statement of principle of Ormiston JA in R v Garofalo. However, I agree with it in general terms. A cautious prosecutor would act in accordance with its terms. Where a witness is expected to give evidence adverse to an accused person, or where their evidence is expected to be controversial, or where, as here, their conduct is impugned in relevant ways in other parts of the prosecution brief, the prosecution should disclose that witness's criminal history to the accused's legal advisers and do so at an early stage. Inherent in that proposition is the fact that investigating police should have disclosed the material to the prosecutor.
For those reasons, along with various matters that had emerged in evidence of the witnesses who had already been called, I formed the view that the accused was entitled to the criminal histories of (at least) those three witnesses who had already given (or commenced giving) evidence. He had a legitimate forensic purpose in issuing the subpoena. He was not on a "fishing expedition". It was "on the cards" that the documents sought in the subpoena would materially assist him in his defence. Accordingly, it was appropriate that the records be produced. I did not accept the arguments made by the Commissioner in relation to access. There was no suggestion of any claim of privilege or public interest immunity. Accordingly, access was granted.
[2]
Endnotes
Transcript ("T") 211.
R v Jenkin [2018] NSWSC 634.
T 47-48.
T 195.
T 197.
T 197.
T 211-213.
T 200.
T 200.
T 169.
T 273-278.
R v Garofalo [1999] 2 VR 625; [1998] VSCA 145 at [1].
[3]
Amendments
21 May 2018 - Typographical error corrected
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Decision last updated: 21 May 2018