R v Spiteri

R v Spiteri - [2004] NSWCCA 321 - NSWCCA 2004 case summary — Zoe

[9]

the trial 4 Evidence to the above effect was given in the trial by the complainant and by two of her friends who had been present during the evening and to whom the complainant had complained immediately after the events. Medical evidence was given establishing injuries consistent with the complainant's account, and identifying DNA in semen taken from her vagina with that of the appellant. Police evidence of investigation of the scene was that Strongbow cider bottles, two black shoes and female underwear were found in the general location. One of the bottles bore the appellant's fingerprints. 5 The appellant gave oral evidence on 22 September 2003, the third day of the trial. He acknowledged that sexual intercourse between himself and the complainant had occurred at or near the golf course, and even that a bottle had been used. He claimed, however, that all sexual activity had been consensual. In short, his evidence confirmed that he had been at the hotel, had met the complainant, had purchased six bottles of Strongbow cider, had agreed to go to a party (he claimed, contrary to the Crown case, at the complainant's invitation), and had, in company with a number of others, walked towards the party. The group fragmented until only the appellant, the complainant and her friend remained. He gave evidence that the complainant made explicit (and unusual) sexual advances to him and encouraged him to accompany her to the golf course to "have some fun"; and that, in the seclusion of the golf course, she had removed her jeans and had herself inserted first the neck, and then the base, of the bottle into her own vagina; and that he had assisted her in this. According to him the complainant then said "now fuck me." They had consensual intercourse, after which the complainant dressed herself. She said that she lost her shoe, and he helped her, unsuccessfully, to look for it. They returned to the road, met the complainant's friend, and walked a short distance when the complainant began to cry. 6 Significantly, the appellant claimed that he had, on 18 May 2002, been involved in a motorcycle accident, in which he had seriously injured his left arm, and that, in November 2002, he retained significant disability in that arm, as a consequence of which it would have been physically impossible for him to restrain the complainant in the way she had described in her evidence. He also gave evidence that, even as at the date of trial, he retained significant disability in his left arm. Medical records establishing injury to his arm on the date alleged were tendered. 7 The appellant was asked by his counsel to show the scarring on his left arm to the jury. In an unresponsive answer the appellant said: "There's just no movement there." (T185)

[14]

He was asked if he had in fact been doing push-ups in the cells to which he replied that he had been trying but that he did not think that he had been succeeding. He said that it would be a complete lie to assert that he had done forty push-ups. 9 As a consequence of the evidence given by the appellant concerning the asserted disability in his left arm, the Crown sought, and was permitted, to call a case in reply. The sole witness called in reply was Mark Stanley Duncan, an officer of the Department of Corrective Services. Mr Duncan's evidence in chief was brief. It was that, on Tuesday 16 September 2003 (that is, six days before the appellant gave evidence) he (Mr Duncan) was on duty at the cells of the Batemans Bay Court where the appellant was in custody. At about 3.30 pm on that day he observed the appellant in his cell, doing push-ups. Mr Duncan described these as "close grip push-ups as opposed to a wide grip push-up". 10 Mr Duncan demonstrated the appellant's hand position as he had observed it. This was described by the Crown Prosecutor for the transcript without dissent from counsel for the appellant as: "... hands in front of himself and thumbs splayed and about what, 25 centimetres between the middle of the two hands." 11 Batemans Bay cell complex is under 24 hour video surveillance. Tendered into evidence was a videotape taken in the cell occupied by the appellant on 16 September 2003. This showed the appellant performing exercises of the kind described by Mr Duncan. In cross-examination it emerged that the videotape shown was taken at about 5.00 pm on that day. Mr Duncan acknowledged that what was depicted on the videotape was not the incident he had observed at 3.30 pm. During the course of the appeal, counsel agreed that what could be seen on the 5.00 pm videotape accorded with what Mr Duncan had said he had observed at 3.30, that is, the appellant performing push-ups in his cell. (Thus, the jury had evidence of two occasions on one day when the appellant was able to, and did, perform push-ups.)

[16]

It is convenient to treat each of the three particulars as separate grounds. In oral argument, a further matter involving s106 of the Evidence Act 1995 was raised. I will treat that as a fourth ground of appeal. 13 In order fully to explore the argument put on behalf of the appellant it is necessary to pay more attention to certain aspects of the evidence. The first such matter concerns the examination of the complainant and of Detective MacPherson. Trial counsel for the appellant pressed the complainant as to her description of the manner in which she alleged that the appellant had used his left hand to restrain her while using his right hand to remove her clothes. This occurred on the first day of the trial, 18 September 2003. At one point when the complainant said that she thought that it was the left hand with which he restrained her, he pressed her further, confirming that in her initial statement she had told the police officer that it was the left hand that he had used for this purpose. He then asked her whether the appellant had told her of having been involved in a motorcycle accident (which she denied); that he had received serious injuries to his arm, and that he had told her that his left arm was weak (both of which she denied). He asked if she had noticed that his left arm was weak to which she replied that it was very strong to her. 14 Detective Michael MacPherson gave evidence that he had been called in to investigate the complainant's allegations on the evening of 17 November. Having regard to the limited nature of the grounds of appeal, it is unnecessary to canvas the bulk of the evidence given by Detective MacPherson. However, one aspect of the cross-examination needs to be noted. It was put to him that, by 27 November 2002, he had known that there had been raised on the appellant's behalf a question about the alleged injury to his left arm. Detective MacPherson agreed that he knew that as at the date of giving evidence (22 September 2003) but could not recall when that had first come to his attention. Nor could he recall the circumstances in which he had become aware of the appellant's assertion. This cross-examination was the last evidence given in the Crown case (Detective MacPherson having given evidence in chief, but not in cross-examination, on 19 September, and having been recalled for further evidence in chief and cross-examination on 22 September). Immediately after Detective MacPherson had retired from the witness box the appellant commenced his evidence. 15 On Friday 19 September Mr Duncan told Detective MacPherson of what he had seen in the cells on 16 September. He appears to have done this as a result of having heard the cross-examination of the complainant. Mr Duncan made a statement on Sunday 21 September setting out his observations. Neither the contents of the statement nor the existence of the video tape was disclosed to the appellant's legal representatives until after the appellant had completed his evidence.

[19]

This test was again adopted by the English Court of Appeal in R v Brown (Winston) [1998] AC 367. I take the second category to be intended to refer to a new issue that would not be apparent to the accused person from the evidence the prosecution proposes to use - that is, a new issue that becomes apparent by reason of the material whose disclosure is in question. 18 The issue of the prosecution's duty of disclosure came before the High Court of Australia in Grey v The Queen [2001] HCA 65; 75 ALJR 1708, but in circumstances in which the Crown conceded that the undisclosed material there in question was of a kind which ought to have been disclosed; the High Court was thus concerned with the consequences of the admittedly erroneous non-disclosure, and not with defining the extent of the obligation. 19 More recently, this Court (in a bench of which I was a member) considered the extent of the Crown's duty of disclosure in R v Reardon [2004] NSWCCA 197 (unreported, 23 June 2004). Hodgson JA extensively reviewed the principles stated in these and other English authorities and (at [54]), while declining to state a conclusion about whether all the views expressed in those authorities should be adopted by this Court, expressly adopted the test posited initially in Melvin and Dingle and endorsed in Keane and Brown. 20 It needs to be acknowledged that his Honour's adoption of that test was, strictly, obiter. In a segment of the judgment with which Barr J and I agreed, his Honour had already held that this Court had no power to embark upon the process sought by that appellant (which was to reopen a perfected appeal). Further, because of the approaches we took to the question of substance, neither Barr J nor I expressly agreed with Hodgson JA's proposed adoption of the Melvin and Dingle test. Accordingly, it is appropriate now to state, for myself, that I agree that that test correctly encapsulates, for NSW, the prosecution's duty of disclosure. 21 Of the three categories identified as categories of material which ought to be disclosed the third can, for the purposes of the present case, be discarded from consideration. For the appellant to succeed in showing that the Crown was obliged to disclose the statement of Mr Duncan and the videotape, it is necessary that it establish that they fell into either the first or the second of the Melvin and Dingle categories. That is, that they were relevant, or possibly relevant, to an (existing and identified) issue in the case, or to raise, or possibly raise, a new issue whose existence would not be apparent from the evidence that the prosecution proposes to use. 22 As to the first, two issues present themselves as possibly relevant: (i) the credibility of the appellant; and (ii) the appellant's ability (as at 17 November 2002) to use his left arm as the complainant asserted he had used it during the attack upon her. 23 In Brown it was held that the prosecution duty of disclosure did not extend to disclosing material relevant only to the credibility of defence (as distinct from prosecution) witnesses. Even less, in my view, does the duty extend to disclosing material relevant only to the credibility of the accused person himself or herself; and even less does it extend to obliging the Crown to disclose material that would deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false. 24 In Brown, Lord Hope of Craighead, with the concurrence of all other members of the House of Lords, said: "The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him ... the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence ." (emphasis added) 25 The reference to material which might assist the defence has to be considered in the context of the trial under consideration. The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee. Here, the appellant declined to be interviewed by police and did not expressly reveal what his defence might be. That said, having regard to the DNA and fingerprint evidence, the Crown might reasonably have foreseen that, if the appellant were to persist in defending the charge, the only avenue of defence open to him was to claim that the activity was consensual. But that is not an answer to the question of what it was that it is now suggested the Crown ought reasonably to have foreseen. What it is now suggested the Crown ought to have foreseen was that the appellant would assert that he condition of his left arm in November 2002 rendered him physically incapable of restraining the complainant as she alleged he did, and, further, that he would seek to support that assertion by claiming that, as at the date of trial, that incapacity remained with him. Then, it is suggested, the Crown ought, in discharge of its duty of disclosure, have alerted the appellant to its knowledge of his capacity, in 16 September 2003, to do push-ups, in order to deflect him from making that false assertion. 26 It is worth stating the sequence of events. It was:

[20]

(i) on 18 September 2003 the complainant was cross-examined as to her knowledge and observation of the appellant's capacity to use his left hand in the manner she alleged - that is, his capacity (or incapacity) as at the date of the alleged offence, 17 November 2002; (ii) on 21 September 2003 Mr Duncan provided a statement as to his observation of the capacity of the appellant to use his left arm - that is, his capacity as at 16 September 2003; (iii) on 22 September 2003 Detective MacPherson was cross-examined as to his knowledge of the appellant's assertion of incapacity - that is, his asserted incapacity as at 17 November 2002; (iv) on 22 September 2003 the appellant gave evidence of his asserted incapacity to use his left hand in the manner alleged by the complainant - that is, his asserted incapacity, not only as at 17 November 2002, but also as at 22 September 2003. 27 The evidence does not disclose when the Crown, through either Detective MacPherson or other police, or Director of Public Prosecutions officers, became aware that the appellant intended to raise an issue about his asserted incapacity to use his left arm in November 2002. What is clear is that it was only when the appellant gave evidence in the trial about his incapacity then, and added that he continued to be incapacitated in September 2003, that his capacity or incapacity as at that date became an issue. Although the appellant's credibility, were he to give evidence, was always likely to be an issue and this was foreseeable to the prosecution, the specific issue as to his capacity to use his left hand at the time of or around the date of the trial only arose when he gave that evidence. Until he made that assertion in his evidence in chief and repeated it in cross-examination, the information and videotape provided by Mr Duncan were of, at best, the most marginal relevance to any issue in the case, even if the Crown had been aware of his assertion about incapacity in November 2002. Counsel who appeared for the appellant on appeal conceded that, had the Crown sought to call Mr Duncan in the prosecution case, objection would certainly (or almost certainly) have been taken on the ground of relevance. She stopped short, however, of conceding that the evidence would have been inadmissible. Had she made that concession, she would have undermined the third basis of the appeal. 28 There was no reason for the Crown to disclose the statement of Mr Duncan or the videotape until the appellant had given the evidence he gave of continuing incapacity. The only purpose of providing the statement or the videotape to the appellant prior to that evidence would have been to deter him from making a statement in evidence which the Crown had material to disprove. The Crown had no reason to anticipate that the appellant would embellish his evidence about his 2002 incapacity by asserting the same incapacity continuing to 2003. While it would not be proper for the Crown to create a trap for an accused person, there is no Crown obligation to deter an accused person from creating a trap for himself; nor need it anticipate that he will do so. 29 Neither the appellant's capacity as at 16 September 2003, nor his credibility in relation to his capacity on 16 September 2003 was an issue in the case until the appellant had given the evidence he gave. Returning to the language of Melvin and Dingle, a sensible appraisal by the prosecution prior to that time would not have led to a conclusion that Mr Duncan's information was relevant or possibly relevant to an issue in the case - whether that issue was defined as the appellant's credibility generally, or his capacity in 2002 to use his left arm. Nor could the material fall into the second Melvin and Dingle category, raising, or possibly raising, a new issue whose existence was not apparent (to the appellant) from the evidence the prosecution proposed to use. Mr Duncan's statement and the videotape were not capable of raising a new issue; they were capable only of clarifying the issue raised by the appellant. The question of the appellant's capacity as at 16 September 2003 became an issue only on the basis of his own evidence and not otherwise. 30 In response to the appellant's contentions, the Crown has made another compelling point. Just as, in Reardon (see [110]), the material which it was contended should have been available was in fact material about that applicant's own conduct, material to which he plainly already had access, so, here, was the material about which complaint of non-disclosure is now made. The relevant information was information that the appellant had been able to do, and had done, push-ups in his cell on 16 September 2003. That contradicted his evidence of continuing incapacity on 22 September 2003. But the appellant himself (although, presumably, not his legal advisers) was well aware that he had been able to do, and had done, those push-ups. The issue was not a failure of the Crown to disclose the fact of his capacity, but the failure of the Crown to disclose its knowledge of that fact, and its possession of evidence to establish that fact. That is, properly analysed, what the appellant now complains of is that the Crown did not disclose the state of its knowledge in such a way as to prevent him from creating a trap for himself. I am quite satisfied that the Crown's duty of disclosure does not go so far. I would reject ground 1A of the appeal.

[24]

There follow a number of provisions refining the bald proposition contained in s102. S104 is one such refinement. 34 It will be recognised, from the concluding words of s104(2), that the drafters of the Evidence Act envisaged that some departure from the general prohibition might, on occasions, be warranted. Sub-ss (3), (4), (5) and (6) expand upon the circumstances in which leave might (or should not) be given. The Crown prosecutor did not seek, and was accordingly not granted, leave to embark upon the cross-examination of the appellant in relation to his having been observed doing push-ups in the cell. 35 The complaint here is not that leave was wrongly given, but that it was not sought, and that the Crown prosecutor embarked upon a prohibited line of cross-examination without seeking or being granted leave. That depends upon the premise that the cross-examination was of a kind that required leave. The prohibition applies only where the subject matter of the cross-examination is relevant only to the defendant's credibility. Where the subject matter of the cross-examination is relevant to the defendant's credibility, but also relevant to some other issue, it is not prohibited by s104(2). (It may, of course, be excluded on some other basis but that is not here material.) 36 The preliminary question, therefore, is whether the subject matter of the cross-examination was relevant only to the appellant's credibility. If it was not, and was relevant to some other issue in the trial, then it was not prohibited by s104, it did not require a grant of leave, and the ground of appeal falls away. 37 On one view (the view urged by counsel for the appellant) the evidence concerning the appellant's 2003 capacity to perform, and his performance of, push-ups was relevant only to his assertion of incapacity as at that time. That is because, on the argument, his capacity or incapacity in 2003 was not relevant to his capacity or incapacity ten months earlier, in 2002. The evidence was too remote from the real fact in issue, which was the appellant's capacity or incapacity in November 2002. If this analysis is correct, then Mr Duncan's contradictory evidence was relevant only to the appellant's credibility and was rendered inadmissible by s102 and s104 (unless leave were granted). 38 The argument deserves close attention, but must, in my view, ultimately be rejected. I have come to this conclusion because of the way in which the appellant himself presented the evidence of his asserted 2003 incapacity. He claimed that that incapacity arose from the May 2002 motor cycle accident which had caused incapacity which existed as at November 2002, and which continued to September 2003. The asserted 2003 incapacity was, essentially, the same as the asserted November 2002 incapacity. For that reason capacity or incapacity as at September 2003 was relevant to capacity or incapacity in November 2002. By his evidence the appellant tied his 2003 condition to his 2002 condition. The 2003 evidence was thus evidence relevant to a fact in issue. 39 It may, of course, also have been relevant to the appellant's credibility, but since it was not relevant only to that issue, it was not rendered inadmissible by s102 or s104, and the Crown prosecutor did not require a grant of leave before embarking upon the cross-examination. 40 I would reject this ground of appeal.

[26]

In those circumstances, counsel argued, the prosecution should not have been permitted to split its case and call evidence in reply. 42 In one sense this may be seen as a refinement of ground 1A. It stands or falls with ground 1A. The authorities recognise that, while rare, a case in reply by the Crown is permitted where an accused person raises a factual issue which the Crown cannot reasonably have been expected to foresee. In my opinion, particularly having regard to the information in its possession as to the appellant's push-up capacity, the Crown could not reasonably have been expected to foresee, and to anticipate by contradictory evidence in chief, that the appellant would make the assertions that he did in his oral evidence. As counsel conceded, evidence tendered by the Crown in evidence in chief as to the appellant's 2003 condition would have met with objection. It was only when the appellant went beyond giving evidence of his incapacity in November 2002 and maintained that that incapacity persisted until September 2003, that the evidence of Mr Duncan became relevant and admissible. It would not have been open to the Crown to have called Mr Duncan's evidence until the appellant gave the evidence he did, expressly linking his 2003 condition with his 2002 condition. 43 Counsel for the appellant relied upon the decision of this Court in R v Eric, Neil and Shane Heuston (1996) 90 A Crim R 213, and in particular upon my own dissenting judgment in relation to one of three appellants. There, that appellant had served upon the Crown (at a time well outside that provided for by statute) three notices of alibi pursuant to s405A of the Crimes Act 1900. Shortly thereafter, and in the weeks before (and, in one case, during the course of) the trial, the Crown amassed a series of statements rebutting the facts asserted in the alibi notices. The Crown did not disclose these statements until after it had closed its case, and two of the appellants (including the appellant now relevant) had made unsworn statements. The Crown then called the makers of those statements in a case in reply. The basis of the appeal in relation to each appellant was a discretion exercised by the trial judge in permitting the Crown to call evidence in reply following the defence cases; and whether his doing so gave rise to a miscarriage of justice. It is of some significance that all members of the bench (Gleeson CJ, James J and myself) agreed that the rebuttal statements in the Crown's possession before the end of the Crown case should have been disclosed before the Crown case was closed. The majority (Gleeson CJ and James J) held, nevertheless, that the failure to disclose those statements did not, in the circumstances of that case, give rise to a miscarriage of justice. It is implicit, or it follows, that their Honours were also of the view that calling the evidence of those witnesses in reply, as distinct from in chief, after the tender of the alibi notice, also did not give rise to a miscarriage of justice. It was in this respect that I dissented. I took the view that the time for production of all material in its possession by them was before the close of the Crown case. 44 A number of observations may be made about Heuston. Firstly, since my judgment was a dissenting one, it cannot be taken to be authority for any proposition. Secondly, the disagreement in the Court was as to the application, in the particular case, of principles which were not in dispute. Thirdly, neither of the judgments reveals the drawing of a clear distinction between the duty of disclosure, and the timing of disclosure the Crown is obliged to make, and the calling of a Crown case in reply. As is clear from the authorities I have cited in my consideration of ground 1A of this appeal, issues concerning the Crown duty of disclosure have been the subject of increasing attention in recent times. Finally, the issues in Heuston were affected by the fact that the evidence in question related to alibis of which evidence was given on behalf of those appellants, and such evidence is subject to the particular provisions of s405A of the Crimes Act: in particular, by reason of those provisions, the Crown ought to be on notice of evidence which it may be able to rebut. In the case of the first Heuston appellant, while an alibi notice was given somewhat earlier than that of the second appellant, one of the alibi witnesses sought to support that defence by reference to a document, which, the Crown was able to show, was a forgery. But that document was not mentioned in the alibi notice, and was produced for the first time during the course of the defence case. All members of the court agreed that the Crown did not have any obligation to inform the defence of the progress of investigations concerning that document; and that there was no error on the part of the trial judge in permitting the Crown to establish its inauthenticity by evidence in reply. 45 In my opinion, neither the majority nor the minority decision in Heuston assists the present appellant. 46 I would reject ground 1C.

[29]

if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence." 48 As with s104, s106 applies only to evidence that is relevant only because it goes to credibility of a witness. For the reasons given in relation to ground 1B, I am of the view that the evidence in question was relevant to a fact in issue and therefore does not come within Part 3.7 of the Evidence Act. However, since it raises serious questions concerning the construction of s106, it is appropriate briefly to outline (without finally resolving) the argument that was put. 49 A precondition of admissibility under s106 is that the substance of the evidence has been put to the witness whose credibility is in question, and has been denied: there is here no issue that these preconditions were met. The section then permits evidence in rebuttal to be adduced otherwise than from that witness. 50 On a literal construction of s106(e), the sub-paragraph would permit evidence to be given tending to prove that a witness had knowingly or recklessly made a false representation while under a legal obligation to tell the truth, even where that false representation was relevant only to the witness's credibility. That construction represents a significant departure from what used to be called "the finality rule", concerning credibility evidence - that is, that a cross-examiner is bound by answers given as to credit by a witness, and may not call evidence to rebut those answers. Doubts about such a conclusion have been expressed: see, for example, Odgers: Uniform Evidence Law, Thomson Law Book Company, 6th edition, 2004, para1.3.8220. In support of his expressed doubts, the author has suggested that, if that were the correct interpretation, paragraphs (a) - (d) would be unnecessary. An echo of that reasoning is to be found in Anderson, Hunter and Williams: The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts, LexisNexis Butterworths, Australia 2002, para 106.35. 51 I have concluded that, since the argument entails consideration of a significant question of construction, and one which (having regard to my views as to the relevance of the evidence to a fact in issue) it is not necessary to decide, the better course is, having noted the argument, to reserve it for another day. 52 For the reasons given above, I would reject this ground of appeal. 53 It follows that I would dismiss the appeal against conviction. 54 SHAW J: I agree with Simpson J.

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