[2016] NSWCCA 306
R v Apostilides (1984) 154 CLR 563
Source
Original judgment source is linked above.
Catchwords
303 ALR 42
Lane v R [2013] NSWCCA 317241 A Crim R 321
MacDonald v RMaitland v R (2016) 93 NSWLR 736[2016] NSWCCA 306
R v Apostilides (1984) 154 CLR 563[1984] HCA 38
R v Kneebone (1999) 47 NSWLR 450[1999] NSWCCA 279
R v O'Brien [1996] SASC 617266 SASR 396
R v SellerR v McCarthy (2015) 89 NSWLR 155[2015] NSWCCA 76
Richardson v R (1974) 131 CLR 116[1974] HCA 19 Whitehorn v R (1983) 152 CLR 657
Judgment (2 paragraphs)
[1]
Judgment - ex tempore (revised)
Before the Court is a notice of motion filed on 2 February 2018 on behalf of the accused seeking (inter alia) orders in the following terms:
"1. That the proceedings be temporarily stayed until such time as the Crown indicates a willingness to call Shayne Desmond Hatfield as a witness in its case.
2. Alternatively, that the court call Shayne Desmond Hatfield to give evidence."
The motion is supported by an affidavit of Timothy William Daley, solicitor, of 12 February 2018. The Crown has opposed the orders sought.
By way of brief background, the accused is charged with the murder of Michael McGurk, and with the intimidation of Mr McGurk's wife, Kimberley McGurk. The Crown's principal witness is Fortunato 'Lucky' Gattellari, who has previously pleaded guilty to his involvement in the deceased's murder and who is currently serving the sentence which was imposed upon him following that plea. Gattellari has given evidence for the Crown in the trial and has asserted, amongst other things, that it was the accused who was responsible for organising the murder of the deceased and the intimidation of the deceased's wife.
In 2016, Gattellari was charged with conspiring with a number of other persons to defraud the accused for a large sum of money. The Crown case against him is that he sought to extract money from the accused in exchange for not giving evidence against him in this trial. Gattellari has been indicted on two counts of conspiracy, and his trial will take place before the District Court in October of this year. In respect of the second of those counts, one of the named co-conspirators is Shayne Hatfield ("Hatfield").
Unsurprisingly, Gattellari was cross-examined at some length in relation to the circumstances giving rise to those charges. In the course of that cross-examination it emerged that at some time in 2014 a meeting took place at the Cooma gaol at which, on one view of the evidence, the alleged conspiracies were discussed. Present at that meeting were Gattellari, Hatfield, Roger Rogerson and Glen McNamara, amongst others. Rogerson and McNamara were acting as what might be described as go-betweens in respect of what was allegedly being discussed.
Hatfield is currently serving a lengthy term of imprisonment in respect of his involvement in the importation of a large quantity of narcotics. At the accused's first trial, he was made available by the Crown in order that senior counsel for the accused could cross-examine him. When called, the Crown adduced his name and then took the matter no further.
To say that aspects of Hatfield's role as a witness on that occasion were unsatisfactory would be a gross understatement. There were innumerable occasions on which, in a pre-meditated and wholly calculated fashion, he gave non-responsive answers to questions which were put to him by senior counsel for the accused. He then displayed a completely disrespectful, and indeed contemptuous, attitude towards the Court when, in response to a direction from me to answer the questions which were put to him, he engaged in the recitation of a nursery rhyme.
At that point that I ordered that Hatfield be returned to his former custody. In the course of leaving the courtroom he said (at T1505.10):
"It isn't against you, your Honour. It is not against you, sir. It is definitely not against you, Mr Terracini. You all know the truth, all of you. Good luck, Ron."
Hatfield was recalled to give evidence on the following day. When brought back into court, he apologised profusely for his earlier behaviour. It is an available inference that in the intervening period, he was given the benefit of legal advice as to his position. It might well be inferred that he was informed that as a person who, would in due course, be applying for release on parole, it would be disadvantageous for him to be charged with an offence of contempt.
Following his apology, Hatfield was cross-examined as to the matters giving rise to the charges against himself and Gattellari. In the course of the cross-examination, about the meeting at Cooma gaol, as well as about the conspiracy which is said to have existed.
Whilst it would be fair to say that Hatfield's demeanour in answering those questions was markedly different from that which he had exhibited the previous day, there were occasions on which it was clear that he was predisposed to making adverse statements about Gattellari whenever the opportunity arose. For example when being cross-examined about a particular conversation he had with Gattellari, Hatfield responded (at T1524.49):
"Yeah. But Lucky's a liar. We all know that."
It is apparent that following the previous trial, the Crown reconsidered its position in relation to Hatfield. In the course of doing so considerable correspondence passed between those acting for the accused and the office of the Director of Public Prosecutions ("DPP") in relation to the issue.
In a letter sent to the DPP on 1 November 2017 the accused's solicitors indicated that they required the Crown to call a number of witnesses, including Hatfield. On 7 November 2017 the DPP responded saying:
"For reasons that should be clearly apparent to you from the trial before Bellew J this year, the Crown will not be calling Shayne Desmond Hatfield or Glen McNamara to give evidence."
On 16 November 2017 those acting for the accused wrote to the DPP again. In relation to Hatfield (and also in relation to McNamara) that letter said the following:
"Given that you do not intend to call those witnesses to give evidence, would you please advise whether you are prepared to make those witnesses available at the trial?"
On 17 November 2017, the DPP responded in the following terms:
"We confirm that the Crown will not be calling Shayne Desmond Hatfield or Glen McNamara to give evidence and, for the sake of clarity, will not call them for the purpose of making them available for cross-examination."
On 7 December 2017, in the course of serving additional material upon those acting for the accused, the DPP further advised in the following terms:
"We refer to our previous advice on 17 November 2017 that the Crown will not be calling Shayne Desmond Hatfield to give evidence as we have determined him to be an unreliable witness and note that our position remains the same."
There was further correspondence between the parties relating to this issue in the period immediately leading up to the commencement of the trial. A letter of 22 January 2018 from those acting on behalf of the accused to the DPP foreshadowed stating an application to the Court that the Crown make Hatfield available for cross-examination.
On 23 January 2018, the DPP responded saying (inter alia) said:
"We further note that the decision to call a particular witness in the Crown case remains a matter for the Crown, not the court. We have advised you in writing on no less than two occasions that the Crown does not intend to call Shayne Hatfield for any purpose."
I should note that the proposition that the calling of witnesses remains solely a matter for the Crown is not strictly correct. As I will come to in a moment, there remains a power, albeit one to be exercised only in exceptional circumstances, for the Court to direct that a witness be called.
On 24 November 2017, in the midst of some of the correspondence to which I have just referred, the DPP received a handwritten letter from Hatfield himself. The letter was addressed to Ms O'Rourke SC (as her Honour then was) who previously appeared as Crown Prosecutor and stated, amongst other things, the following:
"I was told by Detective Richard Howe on 8 October 2017 that you have been informed that I have certain information regarding the Michael McGurk case. This information I have was told to me directly from Lucky Gattellari. I will provide that information by giving an induced statement. I am also willing to wear a listening device/"wire" on Lucky Gattellari for the purpose of you then having the same evidence that I would have already provided by giving you an induced statement."
The letter went on to state:
"The truth must be realised. The reality here is Lucky Gattellari is a pathological liar and quite probably a psychopath. With heart felt emotion which I apologise for in advance, Lucky Gattellari is a deceitful, dishonest, cruel, frightening, evil, murdering human being and I am none of these things. Please allow me to "wire up" on Lucky Gattellari. The lives of all that have been so cruelly disrupted and traumatised by Lucky Gattellari's diabolical actions and his inability to accept responsibility for his actions deserve the truth to be realised now. More than anything, people want honesty and the truth, especially from those in authority. Complete honesty in all areas of life is is a moral and spiritual law. We would all fair well to as spire to achieve this".
Whilst not the subject of the specific evidence, it is apparent that this correspondence formed part of the reason(s) why the DPP took the view that Hatfield was unreliable, and would not be called.
In support of the orders sought in the notice of motion, it was submitted on behalf of the accused that the evidence of Hatfield is essential for the purposes of placing before the court evidence of an admission made by Gattellari in a conversation with Hatfield, to the effect that he (Gattellari) had lied in his evidence in the committal proceedings. It was submitted this was necessarily relevant and indeed essential, to the unfolding of the narrative of the alleged attempt to defraud the accused.
It was further submitted that the Crown's position in respect of Hatfield was inconsistent with that taken in respect of a number of other witnesses who are in the same category as Hatfield, i.e. witnesses who are able to give material evidence in relation to the alleged conspiracy to defraud the accused. It was submitted that the position now taken by the Crown was so inconsistent with that previously taken that it prejudiced the right of the accused to a fair trial.
It was further submitted that there was no proper or identifiable basis for what was described as the "selective approach" of the Crown in respect of witnesses whom it would make available for cross-examination, and those whom it would not. It was submitted that when properly scrutinised, the position taken by the Crown was not only selective, but also unjustified.
Although not specifically advanced, it is inherent from the second of the orders sought that the submissions of the accused include the proposition that this case is so exceptional as to justify the exercise of a power by me as the trial judge to call a witness.
The Crown accepted that this Court had an inherent power to order a temporary stay of proceedings. As I understood it, the Crown also accepted that in exceptional circumstances the Court's power extended to the power to call a witness. However, the Crown submitted that there were a number of factors which led to the inevitable conclusion that Hatfield was an unreliable witness, and that in these circumstances the position taken by the Crown was justified and would not warrant the making of either of the orders which had been sought.
The Crown pointed, in particular, to the fact that there was an established motive for Hatfield to make allegations of dishonesty against Gattellari, in light of the position that each of them now faced. It was also submitted that evidence given by Hatfield on the previous occasion was inconsistent in a number of respects. The Crown also made reference to the content of the correspondence received from Hatfield, as well as to the circumstances surrounding his appearance as a witness in the course of the last trial.
It is necessary for me to turn briefly to some of the authorities which deal with the issues which have been raised.
In Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42 Deane J made the following relevant observations (at 663):
"Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one."
His Honour went on to say (at 664):
"...all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. All available witnesses whose names appear on the back of the indictment or information or who were called by the Crown to give any evidence of any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justify the Crown in refraining from leading evidence from such a witness, either be sworn by the Crown to enable cross-examination by the accused or, at the least, be made available to be called by the accused. Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable."
In R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 the High Court made a number of observations and laid down a number of general principles governing these issues. At 575 the Court said this:
"We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:
1. The Crown prosecutor alone bears the responsible of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case, the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save and in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
The Court went on to say (at 576):
"A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined."
The Court of Criminal Appeal has made reference to these principles on a number of occasions. In Lane v R [2013] NSWCCA 317; 241 A Crim R 321, the Court observed, (commencing at [164]):
"As a matter of general principle it is for the prosecutor alone to decide what witnesses will be called for the prosecution. However, it is appropriate that the prosecutor exercise that discretion so as to call all relevant witnesses, unless the prosecutor concludes that such witnesses are not credible or truthful, so that the defence counsel has the opportunity to cross-examine them."
The High Court's decision in Richardson v R (1974) 131 CLR 116; [1974] HCA 19 at 120-121 was cited by the Court as authority for the latter proposition.
In R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279; James J observed at [50]:
"In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice."
That particular passage from the judgment in Kneebone was drawn to my attention in the course of the submissions made on behalf of the accused. I should say that whilst there can be no dispute as to the propositions that his Honour advanced, there is no suggestion whatsoever in this case that the Crown has made its decision regarding Hatfield on the basis that Hatfield's evidence may not fit with some case theory.
Similarly and although it was not expressly suggested, I should emphasise that there is no basis on which to conclude that the Crown has adopted its current position because it hopes to extract some tactical advantage over the accused in the course of the trial.
The evidence establishes a number of relevant factors.
Firstly, it is incontrovertible that Hatfield's "performance" (if one can call it that) in the witness box in the last trial was entirely unsatisfactory. It was, as I have said, contemptuous. He repeatedly gave non-responsive answers to questions asked of him. His unsatisfactory and offensive response to me when he was directed to answer those questions needs no further comment.
Secondly, it is apparent from the comments that he made when leaving the Court on that last occasion that Hatfield is predisposed to supporting the interests of the accused. The words "Good luck, Ron" bespeak no other conclusion. However, I am mindful of the fact that simply because a witness might be regarded as being in a particular "camp" (in this case, that of the accused) that is not a sufficient reason not to call that person as a witness: Diehm v DPP (Nauru) [2013] HCA 42; 303 ALR 42 at [63].
Thirdly, when giving evidence on the last occasion Hatfield showed a clear predisposition to asserting, when the opportunity arose, that Gattellari was untruthful, to the point of making gratuitous and non-responsive statements to that effect when questioned. That general predisposition is further exemplified by the correspondence that he sent to the DPP in the latter part of 2017 in which he offered to wear a "wire" in pursuit of what he saw as the "interests of justice". That correspondence was in terms that were both emotive and florid.
Fourthly, and without dissecting each and every statement that Hatfield has made, there are aspects of his evidence which defy common sense. In particular, the absence of any reference in his statement to police of some of the matters that he now asserts took place, frankly beggars belief.
Fifthly, it is not without significance that in the course of the final addresses to the jury on the last occasion, both senior counsel for the accused and the Crown appeared (perhaps to varying extents) to distance themselves from at least some of what Hatfield had said. Each, in their own way, made submissions to the jury which clearly had the effect of calling Hatfield's reliability into question.
In all of those circumstances, it is not difficult to ascertain why the Crown has now formed the view that Hatfield's unreliability is such that he should not be called, to the point of not being made available for cross-examination by senior counsel for the accused.
Whether a witness is made available for cross-examination is a decision essentially for the prosecutor: Richardson at [14]. There are cases which recognise that there may be instances where the Crown is justified in taking a stance of the kind taken, in the present case. In R v O'Brien [1996] SASC 6172; 66 SASR 396, Doyle CJ observed (at [6]):
"It is quite clear that there will be cases in which, because the prosecutor considers the evidence unreliable and untrustworthy, it will be appropriate for the prosecutor neither to call a material witness as part of the prosecution case, nor to call the witness so that the witness may be cross-examined by the defence."
It must be recognised that the position now taken by the Crown is not consistent with that which it adopted at the first trial. Although not expressly stated at the time, it can be reasonably inferred that the Crown adopted the position of making Hatfield available for cross-examination on that occasion purely because it took the view that he was unreliable. Things have now reached the point where the Crown will not make him available for cross-examination at all. I was initially troubled by that change in the Crown's position. However, regardless of what view might have been taken about Hatfield prior to the last trial, the Crown now has available to it a constellation of factors, at least some of which arose during or after Hatfield had been called to give evidence in the previous trial, which in my view weigh against making either of the orders sought. This is not merely a case where the Crown has a suspicion that Hatfield might be unreliable.
The Crown's revised position is at odds with that taken in respect of a number of other witnesses whose evidence goes to the issue of the attempted alleged conspiracy to defraud the accused. To that limited extent, and without anything more, the Crown's approach might be regarded (to use the terminology advanced on behalf of the accused) as "selective". However, I am unable to accept the submission advanced on behalf of the accused that there is no proper or identifiable justification for that position. The matters which justify it are clearly identifiable.
I have already noted that in Apostilides the High Court confirmed that other than in the most exceptional circumstances, a trial judge should not himself or herself call a person to give evidence. Having regard to these factors which point clearly to Hatfield's unreliability, I am not satisfied that the present case is exceptional so as to justify the exercise of any power I may have to call Hatfield to give evidence.
As far as a temporary stay of proceedings is concerned, there is no doubt that the Court has the power to grant that remedy. The principles governing the exercise of the discretion to do so were summarised by Bathurst CJ (with the concurrence of R H Hulme J and myself) in MacDonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 at [140]:
"It is well established that the court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness. However … a stay will only be granted to the extent necessary to relieve against unfair consequences."
In the earlier decision of R v Seller; R v McCarthy [2015] 89 NSWLR 155; [2015] NSWCCA 76 Bathurst CJ (with the concurrence of Fullerton J and myself) said (at [128]):
"The question of whether a temporary stay should be imposed arises if the court is of the view that it is inappropriate to grant a permanent stay but, notwithstanding, some relief is necessary to ensure a fair trial."
For the reasons that I have already advanced, I regard the Crown's position as justified in the circumstances. I am not satisfied that there is any unfairness to the accused as a consequence of the that position, nor am I satisfied that there is any unfairness to the accused which would justify the temporary stay which is sought. This is particularly so in circumstances where, as I have noted, senior counsel for the accused in his closing address to the jury on the last occasion sought (putting it neutrally) to distance himself from at least some aspects of Hatfield's evidence.
Whilst it is not necessary for there to be exceptional circumstances to grant a temporary stay, the principles to which I have referred regarding the calling of witnesses necessarily remain instructive in determining whether or not such an order should be made . I am not satisfied, for the reasons I have given, that the circumstances justify that course being taken.
For those reasons, I order that the notice of motion be dismissed.
[2]
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Decision last updated: 26 April 2018