Court of Appeal (WA)|2000-08-31|Before: Kennedy ACJ

Rawcliffe v The Queen [2000] WASCA 239 (31 August 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RAWCLIFFE -v- THE QUEEN [2000] WASCA 239

Criminal law and procedure - Application for stay - Whether abuse of process on part of the Crown - Order for separate trials - Prior trial of co-accused - Co-accused claiming that accused had sought to have him take responsibility for possession of methylamphetamine - Crown challenging credibility of co-accused on his trial - Co-accused acquitted and subsequently giving similar evidence for the Crown in the trial of the accused on the basis that he was a credible witness - Responsibilities of counsel for the Crown

Criminal law and procedure - Evidence - Cross-examination by counsel for accused of father of accused who was called as a Crown witness - Cross-examined by accused's counsel on matters not raised in examination-in-chief - Bias in favour of son - Whether Judge has discretion to give counsel for the Crown leave to ask leading questions in re-examination

Criminal law and procedure - Sentencing - Refusal of trial Judge to order parole - Whether Judge erred in refusing order

Application for leave to appeal against sentence refused

Armstrong v The Queen, unreported; CCA SCt of WA; Library No 980231; 21 April 1998

R v Bellissimo (1996) 84 A Crim R 465

Cardillo v Taylor [1999] WASCA 166

Dobaj v The Queen [2000] WASCA 7

Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995

Histon v The Queen, unreported; SCt of WA; Library No 970197; 1 May 1997

Lewis v The Queen (1998) 20 WAR 1

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McLean v The Queen [1999] WASCA 209

Quach v The Queen [1999] WASCA 210

R v Dao, unreported; SCt of WA; Library No 980619; 29 October 1998

Sikaloski v The Queen [2000] WASCA 63

Stewart v The Queen [1999] WASCA 7

Tsagaris v The Queen, unreported; SCt of WA; Library No 980721; 14 December 1998

1 KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Miller J, with which I am generally in agreement. I desire, however, to make some additional observations of my own.

2 An order having been made for separate trials, it was, in my view, entirely appropriate to try Diaz, who was presented as a co-offender, first. The Crown case against him was that his confession to the police should be accepted by the jury as being true, and that his defence that he had been induced by the appellant to make a false confession to the police should be rejected.

3 Diaz gave evidence in his own defence. That evidence was challenged in cross-examination by the Crown prosecutor, in the course of which it was put forcefully to him that his confession was in fact true. Subsequently, in his closing address to the jury, it was put quite clearly by the Crown prosecutor that what he thought personally regarding the guilt or innocence of Diaz had nothing to do with the trial. Nevertheless, he put the Crown case forward as being that both Diaz and the appellant were involved in the possession of the drugs found in the appellant's father's home.

4 In the end, the jury on his trial either believed the evidence of Diaz, or at least formed the view that his evidence had left them in sufficient doubt as to require them to return verdicts of not guilty, on the basis that they were not satisfied of his guilt of the offences charged beyond a reasonable doubt.

5 The trial of the appellant commenced while the jury on the trial of Diaz were still considering their verdicts. In his opening address, the Crown prosecutor referred to Diaz as a Crown witness who would be called to give evidence in the case. In the circumstances, in my view, there was no justification for any stay of proceedings for abuse of process. I am unable to accept that the conduct of the trial was such as to bring the administration of justice into disrepute. What was being put to the jury on the appellant's trial in relation to the evidence of Diaz was entirely consistent with the verdict of the previous jury on the trial of Diaz. I would dismiss the first ground of appeal.

6 The second ground of appeal was directed to the manner in which the re-examination of the appellant's father was conducted. The Crown had called the appellant's father with a view to establishing who owned various items located in his house, in which the appellant was living at the relevant time, and who was the usual occupant of particular rooms in the house. He was not asked any questions in his examination-in-chief relating to Diaz. When it came to his cross-examination, however, he was closely questioned by counsel for the appellant in relation to Diaz by means of a substantial number of leading questions, notwithstanding that he appeared to be extremely co-operative and that throughout his cross-examination he fully supported his son, for whom he might be described as being a willing witness. During the course of the cross-examination, no objection was taken by either her Honour or the Crown prosecutor to the form of the questions being asked.

7 In the re-examination of the appellant's father, the Crown prosecutor asked a number of leading questions which drew an objection from counsel for the appellant. The learned trial Judge allowed the cross-examination to proceed because, she said, she did not think that defence counsel should have been cross-examining the witness, saying, "He is a witness in your side of the court". That remark, made in the presence of the jury, was, I consider, somewhat unfortunate. Nor was it desirable for her Honour, on her own initiative, to permit the Crown to cross-examine the appellant's father, the Crown prosecutor remaining silent on the matter. Nevertheless, in the context of this trial, I cannot accept that her Honour "acted in prejudice of the appellant's ability to have a fair trial" or that what occurred could have given rise to any miscarriage of justice.

8 The leading questions asked in re-examination prior to the objection being taken concerned the appellant's father's awareness of the penalties attaching to drug dealing.

"Were you relieved when you had the visit from Mr Diaz?---Naturally.

And he went into detail as to what had happened?---Yes, he did.

What did he say about the vase [in the appellant's room]?---Well, he just said he dropped the - dropped the plastic bag in the vase.

Were you aware of the vase that he was talking about?---The police had already shown me the vase.

And prior to that, had you seen the vase?---I don't think so. Not that I can recollect. That was in Michael's room.

Because this would get your son off the hook?---I was relieved that he'd admitted to doing it.

Yes; and so did you go and tell the police?---Why should I. He'd already told them.

Why - did you go and tell the police that Diaz had just confessed to you that he was solely responsible for putting the drugs in the shed and in your son's bedroom and that your son was totally innocent? Did you go and tell the police?---He'd already told the police.

Because, I suggest to you, you are lying?---No I'm not."

10 Following the renewal of the objection regarding the Crown prosecutor's asking of leading questions, there took place a discussion in the absence of the jury on this issue. In the end, there was no resumption of the father's re-examination.

11 There is not a great deal of recent authority regarding the asking of leading questions in cross-examination and in re-examination other than in the case of a hostile witness. Two authorities which appear regularly to be cited in support of a rule prohibiting the use of such questions in re-examination do not provide a great deal of assistance. They are Ireland v Taylor [1949] 1 KB 300, at 313, and R v Harman [1985] Crim LR 326. In the first of these cases, Somervell LJ, at 312 - 313, referred to the cross-examination and re-examination of Mrs Ireland. At 313, his Lordship said:

"Some criticism was directed to the fact that the answer in re-examination was in answer to a leading question. I agree, however, with the judge that it is in accordance with the probabilities, and, taking these reasons, supported as I think they are, by Mr Warner's evidence, I am of opinion that the landlords fail in their submission that there was no evidence to support this finding."

12 It is interesting to note that Tucker LJ, at 309, merely referrred to evidence appearing to have been obtained as a result of questions put by counsel and by the referee which tended, by their leading nature, somewhat to discount the value of the answers so obtained. The same observation might also be made as to the cross-examination of the appellant's father in the present case. But, in any event, the issue now raised for decision was not discussed.

13 In the later case, Lord Lane CJ and Mustill and Skinner JJ constituted the Court of Appeal. One of the grounds of appeal against the appellant's conviction was that there were material irregularities occurring during re-examination by prosecuting counsel of two witnesses for the Crown. The first, Barnes, had come up to proof in examination-in-chief but he had deviated from this account under cross-examination. When re-examined, he was shown his original statement for the stated purpose of refreshing his memory, and he had been asked whether the account therein was likely to be more reliable than that given by him under cross-examination. The second witness, Evans, had been cross-examined on the basis of an inconsistency between his version of events given in evidence and that recorded in his original witness statement. In re-examination (and despite objections by defence counsel), he was allowed to refer to the deposition that he had made at committal proceedings.

14 The brief case report merely states that in dismissing the appeals it may well be that, with regard to the evidence of Barnes, there was nothing wrong in principle in allowing a witness to refresh his memory from a contemporaneous document in re-examination, subject to the usual rules governing reference to such documents. It was not, however, permissible for a witness to be, in effect, cross-examined as to which account was the more likely to be reliable, in the way this happened in the case. Further, Evans should not have been allowed to refer to his deposition, which was a different document from the statement introduced in cross-examination. Such a document could have been used in re-examination to refute suggestions of recent concoction, but nothing of the sort arose here. Even if these irregularities were material, however, the proviso would have to be applied, since the trial Judge had directed that both pieces of evidence be ignored and the weight of evidence against each appellant was substantial. R v Harman is far removed from the present case.

15 Taylor on Evidence, 12th ed 1931, par 1404, states:

"With respect even to material points, the Judge, in his discretion, will sometimes allow leading questions to be put in a direct examination, as, for instance, where the witness, by his conduct in the box, obviously appears to be hostile to the party producing him, or interested for the other party, or unwilling to give evidence or where special circumstances render the witness rather the witness of the Court than of the party."

See also Ligertwood, A, Australian Evidence, 2nd ed 1993 at 405.

16 Cross and Tapper on Evidence, 8th ed 1995, whilst stating at 327 that leading questions in re-examination may not be put, any more than they may be put in chief, suggested at 284 that the Judge has a wide discretion and that it is difficult to say more than that leading questions will usually be disallowed in chief or in re-examination, although they will usually be permitted in cross-examination. These statements have been carried through into the Australian text, Cross on Evidence, Australian Looseleaf Edition - see at par 17605, par 17165.

17 In Wigmore on Evidence, Chadbourn Revision, a broad view is taken. At par 770, the learned author writes:

"It follows, from the broad and flexible character of the controlling principle [in relation to leading questions] that its application must rest largely, if not entirely, in the hands of the trial court. So much depends on the circumstances of each case, the demeanour of each witness, and the tenor of the preceding question, that it would be unwise, if not impossible, to attempt in an appellate tribunal to consider each instance adequately. Furthermore, the harm in a single instance is inconsiderable and more or less speculative, and the counsel's repetition of an impropriety can be so easily controlled by the trial court that no favor is shown in the appellate tribunals to objections based merely on the form of the question."

"A similar situation arises where the witness, though called by the party examining, is in fact biased against his cause and is thus indisposed to favour it by accepting suggestions of desired testimony. Here a question cannot be objectionable as leading."

18 In Clarke v Saffery (1824) Ry & Mood 126 at 126; 171 ER 966 at 966, Best CJ said there was no fixed rule which binds the counsel calling a witness to a particular mode of examining him. He continued:

"If a witness, by his conduct in the box, shews himself decidedly adverse, it is always in the discretion of the judge to allow a cross examination; but if a witness called, stands in a situation which of necessity makes him adverse to the party calling him, as is the case here, the counsel may, as matter of right, cross examine him."

19 The next case in the report, however, is Bastin v Carew (1824) Ry & Mood 126; 171 ER 966, in which it is said that a similar objection was taken, and that the cross-examination of an adverse witness was allowed. Lord Abbott CJ said, at 127; 967:

"I mean to decide this, and no further. That in each particular case there must be some discretion in the presiding judge as to the mode in which the examination shall be conducted, in order best to answer the purposes of justice."

20 Clarke v Saffery (supra) was disapproved by the Court of Appeal in Price v Manning (1889) 42 Ch D 372, a case concerned with a hostile witness - see per Cotton LJ at 373 and Fry LJ at 374, who preferred the discretionary power of the trial Judge identified in Bastin v Carew.

21 This was also the view of Coleridge J in R v Murphy [1837] EngR 1120; (1837) 8 C&P 297, at 306; [1837] EngR 1120; 173 ER 502, at 507. He held it to be in the discretion of the Judge how far he will allow the examination-in-chief of a witness to be by leading questions.

22 Lord Abinger CB, in R v Chapman [1839] EngR 208; (1838) 8 C&P 558 at 559; [1839] EngR 208; 173 ER 617 at 617, indicated that, if a witness shows unfair bias, he may be cross-examined by counsel who calls him.

23 Then, in Parkin v Moon [1835] EngR 409; (1835) 7 C&P 408 at 409; [1835] EngR 409; 173 ER 181 at 181 - 182, in which the plaintiff was cross-examining one of the defendant's witnesses who seemed an unwilling witness for the defendant, but a willing one on the part of the plaintiff. Counsel put leading questions to the witness. There was an objection. Alderson B said:

"I apprehend you may put a leading question to an unwilling witness on the examination in chief at the discretion of the Judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not."

24 However, in Mooney v James [1949] VicLawRp 6; [1949] VLR 22, at 28, Barry J said:

"I consider the learned Baron [Alderson B**]** overstated the position, however, and that there is no absolute right to put leading questions in cross-examination. The basis of the rule that leading questions may be put in cross-examination is the assumption that the witness's partisanship, conscious or unconscious, in combination with the circumstance that he is being questioned by an adversary will produce a state of mind that will protect him against suggestibility. But if the Judge is satisfied there is no ground for the assumption, the rule has no application, and the Judge may forbid cross-examination by questions which go to the length of putting into the witness's mouth the very words he is to echo back again. (cf R v Hardy [1794] 24 How St Tr 659 per Buller J, at 755). Answers given in such circumstances usually would not assist the Court in its investigation because they would be valueless, and in the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination. This brings out an essential feature of trial by British Courts, namely, that it is the duty of the Judge to regulate and control the proceedings so that the issues for adjudication may be investigated fully and fairly."

"Usually it will be the duty of the Judge to prevent counsel for the party who calls the witness from putting questions that suggest the desired answers, and to permit counsel for the opposing party to put such questions. But in his discretion, which must be exercised upon judicial grounds, the Judge, if he thinks the interests of justice require it, may permit questions which suggest the desired answers to be put in examination in chief, and may forbid them in cross-examination."

See also Gordon v Carroll (1975) 6 ALR 579, at 585, but cf McClure v Mitchell (1974) 6 ALR 471, at 483 - 484.

25 In Tedeschi v Singh [1948] WN 134, Roxborough J, in a case in which one of two defendants had given evidence for the plaintiff, indicated that his discretion was not controlled by any binding rule of practice. His own course was to grant leave to cross-examine.

26 The earlier of the foregoing authorities indicate what was the common law at the time when the Evidence Act 1906 was introduced. Section 20, s 21 and s 22 of that Act did not, for the present purposes, impinge upon the established law. Moreover, the discretionary power of the trial Judge to permit the use of leading questions was not only exercisable when the witness was "hostile". On the basis of these authorities, I consider that, in this case, the learned trial Judge did have a discretion to allow the Crown to put leading questions to the appellant's father. Even if, however, it be accepted that she did not have such a discretion, it does not appear to me that it could have had any effect upon the outcome of the trial and could have given rise to no miscarriage of justice. The Crown prosecutor's re-examination of the witness could, in my opinion, only have had a minimal impact upon the jury. I therefore do not consider that the second ground of the appeal has been made out. I would accordingly dismiss the appeal against conviction.

27 In relation to sentencing, her Honour drew attention to the fact that the appellant was not addicted to methylamphetamine but was simply dealing in the drugs for monetary gain. She also had regard to the fact that the appellant was a person of mature years who was not committed to his rehabilitation. Furthermore, he had already been declared to be a drug trafficker, and the offences were committed while he was on parole for possessing amphetamine with intent to sell or supply it to another. Her Honour accepted that the appellant was a middle to low range dealer, and I am quite satisfied that she was well aware of the quantity of amphetamine involved in the case. I am not persuaded that her Honour's discretion miscarried in fixing the sentence which she did.

28 Nor am I persuaded that her Honour fell into any error in declining to order eligibility for parole. In Thompson v The Queen (1992) 8 WAR 387, at 395, it was said in the joint judgment of the court that "the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole (see Howell v The Queen (1989) 2 WAR 60 at 61 - 62, per Wallace J) but nonetheless the philosophy of the Act suggests a bias towards eligibility (see Howell v The Queen (supra), per Brinsden J, at 67 - 68; Yarran v The Queen (unreported, SCt, WA Library No 8762, 15 March 1991, per Malcolm CJ, at 4)". The High Court, in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 669, suggested that the meaning of this proposition was somewhat elusive, no doubt having regard to the reference to a bias towards eligibility in the context of the requirement for a trigger. However, the proposition of the majority in Howell v The Queen that the sentencing Judge's discretion to make an order for eligibility for parole cannot be triggered unless there is something in the material which points positively towards the appropriateness of parole, as to which see Wallace J at 61 - 62 and Seaman J at 71 - 72, has consistently been applied by the Court of Criminal Appeal in this State, based, in particular, on the history of the legislation. In any event, by reason of the appellant's prior sentence, he will remain eligible for parole after he has served the present fixed term.

29 For the reasons given by Miller J, I would refuse the appellant's application for leave to appeal against sentence.

30 PIDGEON J: I have had the advantage of reading in draft the reasons of Miller J. I am in entire agreement with those reasons in respect of the appeal against conviction on the ground that the Crown were permitted to cross-examine one of their own witnesses. I consider that in the circumstances which arose in this case where a Crown witness unexpectedly in cross-examination gives evidence in a different area to which the witness was called, and which is evidence that would be against the Crown case, there is a right to make application to the Judge independent of s 21 to cross-examine the witness in respect of that particular evidence. This is a right that existed at common law which I do not consider has been excluded by the Evidence Act. The fairness of the trial would require the evidence to be proerly tested. It must, however, be properly exercised in the way outlined by Miller J. I also agree with Miller J in respect of the appeal against sentence.

31 In relation to the first ground of appeal, I agree with the conclusion of Miller J. I would, however, not be of the view that the Crown prosecutor in the circumstances he was in, acted improperly. He was in a very difficult position. The trial had been split and there was an expectation for the trial to be concluded in the three days set aside. This expectation was against the background that there is a significant delay in the District Court and if the second trial did not proceed, some time may elapse before it could proceed. Had the joint trial proceeded, then the evidence of Diaz would have been before the jury. I can see nothing improper with the Crown putting that evidence for the jury's assessment in the second trial if the witness was willing to give evidence. It was important evidence and would be against the public interest for the jury not to have had the opportunity to have assessed it. I do not see it as a bar that the Crown Prosecutor presented the first case on the basis that that evidence was untrue and that he cross-examined on that basis.

32 In a case such as this the prosecutor has no personal knowledge of the truthfulness or falsity of the evidence. He can do no more than put it before the jury. It may well be, with hindsight, that it would be better for the prosecutor not to suggest to the jury in the second trial that the evidence is true, but simply to put it forward to them for their assessment to see whether or not they think it true.

33 MILLER J: The appellant stood trial in the District Court at Perth on two counts of having in his possession a prohibited drug (methylamphetamine) with intent to sell or supply it to another. He had initially been jointly charged with one Brendan Marshall Diaz, but at the commencement of the trial of the appellant and Diaz application was made to Yeats DCJ that the appellant should be tried separately from Diaz. The application was made by counsel for the appellant and was supported by counsel for Diaz. The basis of the application was that if both accused persons were tried together irreparable prejudice would be suffered by the appellant by reason of the fact that Diaz, in the course of his defence, would seek to adduce evidence of the appellant's prior conviction for an offence of possession of amphetamines with intent to sell or supply in October 1995. This would have come about by reason of Diaz testifying that a confession he made to police in relation to possession of the methylamphetamines was a consequence of the appellant asking him to accept responsibility for possession of the drugs. It would have been alleged that Diaz confessed in order to protect the appellant from conviction and an inevitable gaol term coupled with likely deportation. After hearing argument on the matter (in which the Crown opposed the application) the learned trial Judge finally ruled that there should be separate trials of the two accused persons but that they should follow each other consecutively on the days which had been set aside for the joint trial.

34 The Crown elected to try Diaz first. It led evidence that Diaz had confessed to the possession of the drugs which had been found at the house of the appellant in Yokine, one quantity being in a black sports bag in a garage in the house and another in a vase in the bedroom occupied by the appellant. Diaz testified in his defence. He contended that although he had confessed to ownership (and thus possession) of the drugs, he had done this at the specific request of the appellant and for reward. What Diaz confessed to was that he had two ounces of methylamphetamine in a black sports bag and a tupperware container in the back storage shed. When asked by his counsel why he had made such a confession he said that he had done so "to save Michael's neck". He testified that in return for doing this he had received a jet ski and a Harley Davidson motorcycle and had demanded (but not received) the sum of $30,000. When the appellant had refused to give him $30,000 he had consulted his solicitor who had informed him that he could be charged with the offence of conspiring to pervert the course of justice. In spite of this, he was determined to tell the truth at trial, which he had done. The Crown prosecutor put it to Diaz in cross-examination that the only reason he had testified that he had falsely confessed to ownership and possession of the drugs was because he had fallen out with the appellant. It was squarely put to him that he had put the drugs in the appellant's shed because he did not wish to leave them in the boot of his car whilst it was parked at Hillary's boat harbour. He was questioned as to whether or not the story he had told the jury was absolutely true and asked whether if the appellant had been in the dock with him, he would be prepared to say it then. To this he answered in the affirmative.

35 In his closing address to the jury counsel for the Crown submitted that Diaz had been telling the truth when he spoke to the police and confessed to having bought two ounces of methylamphetamine that morning at the Kewdale Hotel, one ounce of which had been put in the black bag in the shed at the appellant's house and the other ounce in the appellant's bedroom. He said:

"It's in his possession and he supplies it or sells it to Rawcliffe and that's why it's divided and put in the bedroom and the other in the shed.

He gives an explanation to the police as to why it's in the shed. It's just in the shed because his car is damaged and you wouldn't take valuable amphetamines down the beach. The shed is locked. Of course it's locked because these drugs are valuable and they want to be protected, so he puts it in the shed and locks the shed. There's nothing wrong with that.

The real situation, the crown says, is that these men both were caught and both confessed. People do that. They do it all the time. The only reason that this man is now coming before you with this story is, on his own evidence, because he has fallen out with Rawcliffe; not because he has got troubled with his conscience but because for some reason or other, and he gives you a reason which you may or may not accept - but at the base of it he has fallen out."

36 After the learned trial Judge had given directions to the jury and the jury had retired to consider its verdict, the trial against the appellant began. The jury was empanelled and in the course of that empanelment counsel for the Crown indicated that Diaz would be called as a witness for the prosecution. The jury was sent away until the following day and counsel for the appellant then made some submissions to the learned trial Judge in relation to the Crown's proposal to call Diaz. The first jury had by then returned and acquitted Diaz.

37 Counsel for the appellant expressed concern that if Diaz was called he might say something about the appellant's prior record. He then sought the opportunity to consider the transcript of the evidence of Diaz overnight and the following morning expressed concern that the Crown prosecutor, having the previous day invited the jury to reject the sworn testimony of Diaz and to find that his confession to the police was true, was now seeking in the second trial to rely upon Diaz as a witness of truth, not in relation to his confessional evidence to police, but as to his sworn testimony in his own trial. It was put to the learned trial Judge that she should stay the trial on the basis that the procedure which the Crown proposed to adopt was an abuse of the process of the court and such a fundamental defect in the trial process that nothing the learned trial Judge could do about it would relieve its unfair consequences. In the course of argument about the matter, counsel for the Crown made the statement that he had formed the belief during the first trial (in which he was the prosecutor) that Diaz was a truthful witness and he was indeed "bolstered in that belief by the decision of the jury in acquitting him".

38 The learned trial Judge refused the application to stay the trial or to discharge the jury on the basis that there would be an abuse of process of the court. Her Honour drew attention to the unfortunate consequences of the decision to allow separate trials, pointing out that the evidential issues which had now arisen had not been drawn to her attention. She endorsed the view of counsel for the Crown that Diaz had been shown to be a truthful witness at the first trial and expressed the view that no unfairness would be caused to the appellant by the calling of Diaz at his trial, particularly as counsel for the appellant would, under cross-examination, be able to do "much damage" to Diaz. Counsel for the Crown then opened the case against the appellant and in dealing with Diaz indicated that although he had confessed to police that the drugs were his, the confession was a false one and made at the request of the appellant in return for "being looked after". Counsel for the Crown advised the jury that Diaz had been told by police that he would be charged with attempting to pervert the course of justice and it was said that "you will hear from him and he will tell you what really happened".

39 Diaz was duly called to give evidence and reiterated on oath that the drugs were not his but that he had been requested by the appellant to accept the responsibility for them. The relevant passage of his testimony is as follows:

Well, did he say who owned the drugs? --- Yes, he did.

What did he say? --- He said that there was 2 ounces of speed on his premises and they were his and they asked - he asked me if I'd take the blame for it.

All right. Well, let's just take it step by step. Did he say anything about the possible consequences of being found with that 2 ounces? --- Yes, he did. He said that he was ---

Sorry, just a minute. Okay. Did he say that imprisonment - that if he was convicted he might be imprisoned? --- Yes, he did.

Did he say anywhere on that journey that he might be deported because he was not an Australian citizen? --- Yes, he did.

Did he make it clear to you that anybody else who might be convicted of that offence could be imprisoned? --- There was a possibility, yes.

Only a possibility? Well, all right, so depending - all right. So, having established the consequences, did he suggest anything that you might be able to do? --- Yes, he did.

What did he ask you to do? --- He asked me if I'd put my hand up and say it was mine.

Did he - was there to be any benefit to you in doing this? --- At the time there was no mention of it, but, yes, there was going to be a benefit from it.

When did you find out what the benefit was to be? --- I honestly couldn't tell you. I think it was on the way home, that he said to me that I would be well looked after."

40 Diaz was extensively cross-examined by counsel for the appellant but it seems clear that the jury accepted his testimony, as the appellant was convicted of both counts on the indictment which he faced.

41 The appellant appeals against his convictions on the primary ground that the learned trial Judge erred in failing to permanently stay the trial of the appellant as an abuse of the process of the court. Although no authority could be cited by counsel for the appellant to support the proposition that in these circumstances the actions of the Crown constituted an abuse of process of the court, it was argued that the Crown had provided Diaz with "a cloak of respectability as a Crown witness and the false impression conveyed to the jury that the authorities had always viewed him as the innocent dupe of the appellant". Reliance was placed upon observations of the High Court in Walton v Gardiner (1993) 177 CLR 378 and Rogers v R (1994) 181 CLR 251 to the effect that the inherent jurisdiction of the court to stay proceedings for abuse of process is extensive . There is no doubt that this is so, as was pointed out by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (supra) at 392 - 393 as follows:

"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."

42 The essential argument advanced for the appellant was that the appellant having been forced to seek a separate trial to avoid prejudice which would otherwise have resulted from Diaz testifying as he proposed to do, he should not have been exposed to "an opportunistic change of position by the Crown" which in the circumstances of the case constituted an abuse of process. That abuse of process was said to be the Crown adopting contrary positions before different juries who were addressing exactly the same issue.

43 There is no doubt that the procedure adopted by counsel for the Crown in the two trials is open to criticism. The Director of Public Prosecutions did not seek to deny that fact on the hearing of the appeal. Although it was not for counsel for the Crown (or for that matter the trial Judge) to reach a conclusion as to whether Diaz was telling the truth or otherwise at his trial, the fact of the matter is that counsel for the Crown did conclude that Diaz was a witness of truth and publicly stated that fact at the trial of the appellant. If it were the case that counsel for the Crown had reached that conclusion after his cross-examination of Diaz at the first trial, it is a matter of surprise that he should have submitted to the jury as strongly as he did that the real truth of the matter was the confession made by Diaz to police and not his sworn testimony at trial. He should either have declined to prosecute the case further and invited the trial Judge to direct the jury to acquit, or alternatively, have declined to make any closing address to the jury at all. Having made a submission to one jury on the morning of the day in question that Diaz was untruthful in his sworn testimony and that the real truth was in his confessional interview, it is remarkable that counsel for the Crown should, on the afternoon of the same day, have then indicated that Diaz' sworn testimony at the first trial should be regarded as the truth and would be adduced in evidence against the appellant. As was pointed out in Cushing v R [1977] WAR 7 by Wickham J (at 11), counsel who carry a brief for the Crown accept a very high responsibility indeed. In this case it would have been preferable for counsel for the Crown to have stopped to consider the position which he had created and to have conferred with the Director of Public Prosecutions. The Director conceded on the hearing of the appeal that an objective bystander (and the appellant) would have had good reason to have been concerned about the fairness of what had occurred with Diaz on the day in question.

44 However, the question is whether the course adopted by counsel for the Crown brought the administration of justice into disrepute or was otherwise an abuse of process. As was pointed out by the Director, even if another prosecutor had been allocated to prosecute the appellant, that prosecutor may have determined that Diaz should be called as a witness. He would not personally have had the experience of cross-examining Diaz in a previous trial and would have had alone the responsibility for deciding whether or not Diaz should be called as a witness for the Crown: see R v Apostolides [1984] HCA 38; (1984) 154 CLR 563. Further, it is conceded by counsel for the appellant that even if the learned trial Judge had considered the decision of counsel for the Crown to call Diaz at the appellant's trial to be essentially unfair or likely to create an injustice, she was unable to stay the trial unless counsel for the Crown gave an undertaking not to call Diaz. Even if this Court considered that there had been a lack of fairness and/or impartiality in the administration of justice in the case in question, it could not order a retrial on the basis that the Crown refrain from calling Diaz.

45 The problem thus faced by the appellant is that whatever criticisms there may be of the course taken by counsel for the Crown, the situation cannot now be redressed. Nor, it would seem, could it have been redressed by the learned trial Judge at the time. At best, her Honour could have suggested to counsel for the Crown that it may be more appropriate in the light of his cross-examination of Diaz at the first trial to proceed against the appellant without Diaz. That would not, however, entitle the trial Judge to interfere in the decision of counsel for the Crown as to which witnesses should be called: R v Apostolides (supra). It cannot therefore be said that there was at the trial of the appellant any miscarriage of justice which this Court can or should remedy.

46 The second ground of appeal against conviction is that the learned trial Judge erred in law and acted in prejudice of the appellant's ability to have a fair trial in relation to the testimony of David Rawcliffe, father of the appellant. Mr Rawcliffe was called by the Crown to establish a number of formalities, including the circumstances in which police had, in the execution of a search warrant, searched the house at Yokine on 12 October 1997. He was cross-examined by counsel for the appellant first in relation to a number of non-contentious matters, but then in relation to an alleged visit received by Mr Rawcliffe from Diaz during the week after the police search of the premises. The cross-examination brought out the essence of the appellant's defence. That was done by a series of leading questions intermingled with some which were not leading:

"What did he say to you? Did he apologise to you about something? --- Yeah, he came and apologised for bringing the drugs onto the property, onto my property.

Yes; and did you then have a discussion with him about those matters? --- Yeah. He explained why he'd brought the things onto the property and where he had put them.

What did he say? What did he say about that? --- Well, he said he'd got them over in Kewdale. He'd brought them over. He couldn't lock his car up so he put one of them in the shed, he took the other one inside, when he got changed to go jet skiing, and he sampled one. He said he heard the door bang, dropped it in the vase, because he panicked, he thought it might have been me, and he was going to pick it up after.

You say he apologised. What was his mood and attitude with you that day? Did he appear to be sorrowful about the events? --- Yeah, genuinely apologetic.

How long was he in your presence? --- Probably half an hour, three-quarters, something like that. Not a great deal of time. He just called in to apologise and pretty well left.

And that was - just so that's perfectly clear, that was at a time when you son had yet to be released on bail? --- That's right, yeah. Yep."

47 Counsel for the Crown then re-examined Mr Rawcliffe and in the course of so-doing was about to ask a leading question when counsel for the appellant objected. The following exchange then occurred:

"YEATS DCJ: I'm going to allow it because I don't think you should have been cross-examining this witness, in my view. He is a witness in your side of the court.

YEATS DCJ: You are entitled to in one sense ---

WALMSLEY, MR: I'm entitled to cross-examine the witness.

YEATS, DCJ: But not on the subjects that you did. I will allow the crown to cross-examine, thank you."

48 Counsel for the Crown thereupon put to Mr Rawcliffe the following questions:

"Were you relieved when you had the visit from Mr Diaz? --- Naturally.

And he went into detail as to what had happened? --- Yes, he did.

What did he say about the vase? --- Well, he just said he dropped the - dropped the plastic bag in the vase.

Were you aware of the vase that he was talking about? --- The police had already showed me the vase.

And prior to that, had you seen the vase? --- I don't think so. Not that I can recollect. That was in Michael's room.

Because this would get your son off the hook? --- I was relieved that he'd admitted to doing it.

Yes; and so did you go and tell the police? --- Why should I? He'd already told them.

Why not? --- Because he had already told the police.

Because, I suggest to you, you are lying? --- No, I'm not."

Counsel for the appellant renewed his objection to the leading questions of counsel for the Crown and objected to her Honour having rebuked him in front of the jury for doing what he contended he was entitled to do. Her Honour declined to interfere and invited counsel for the Crown to continue but no further questions were asked.

49 The proposition put by counsel for the appellant is that counsel for the Crown was only entitled to impeach the credit of his witness in accordance with the provisions of s 20 and s 21 of the Evidence Act 1906 and not otherwise. It was put that the witness was neither unfavourable nor hostile and no application had been made to the learned trial Judge to treat the witness as a hostile witness pursuant to the provisions of s 20 of the Evidence Act. It was contended that the learned trial Judge's comments and rulings in relation to the matter were such as to improperly convey to the jury that she considered the conduct of the defence and the credibility of the witness to be questionable. In this respect it is to be noted that during the course of her summing up the learned trial Judge made reference to the evidence of Mr Rawcliffe, pointing out that the Crown suggested that he had come to the court to give evidence in an attempt to give false evidence on behalf of his son.

50 The Director argued that whilst it is a general rule that in the absence of one's witness being declared hostile counsel should not be allowed to ask leading questions of that witness, the Court has a broad discretion to allow this to be done where the interests of justice require. It was contended that in the circumstances of this case the learned trial Judge was entitled to allow the Crown to ask leading questions of Mr Rawcliffe and this was so, notwithstanding the provisions of s 20 of the Evidence Act, the provisions of which, together with s 22, do not display any clear legislative intention to completely remove the discretion of the Court to allow impeachment of one's own witness by cross-examination (without that witness being declared hostile) in exceptional cases where the interests of justice require. Reliance was placed by the Director on two Victorian cases, the first of which was Mooney v James [1949] VicLawRp 6; [1949] VLR 22. In that case Barry J dealt at considerable length with the limits of cross-examination and the consequences of asking questions that suggest the desired answers. His Honour said (at 27 - 28):

"The writers on evidence are also in agreement that as a general rule leading questions are permissible in cross-examination (Phillips, op cit, at p 472; Starkie, op cit, at p 196; Best, op cit, at p 561; Taylor, op cit, at p 912; Wigmore, op cit, at pp 130 and 430; Phipson on Evidence (1942), (8th ed), at p 468). The most qualified statement is by Chitty (op cit, at pp 772-3) who, observes:

As regards the mode of cross-examination, it is a common doctrine, that when a witness has been examined in chief, the counsel of the opponent, whether plaintiff or defendant, may put any question at all relevant to the cause he may think fit, and in a manner however leading. But we have attempted to show that the principle on which objections to leading questions is [sic] founded is much more extensive, and is not confined to questions to a witness in chief, but equally extends to a witness when under cross-examination, unless it appear that the person is not the witness of truth, but evidently endeavouring to conceal the truth from the counsel who is examining him, whether for or against the plaintiff, and in which case the most leading questions ought to be permitted. And in practice the position that leading questions may be put in cross-examination is now considerably qualified; for if the witness betray an anxiety to serve the party against whom he was examined as a witness in chief, a direct leading question will not then be permitted in cross-examination.

In Dickinson v Shee [1801] 4 Esp 67, Lord Kenyon CJ, ruled that a leading question that went to the essence of the defence was permissible in cross-examination, and in Parkin v Moon [1835] EngR 409; [1836] 7 C & P 408, an unwilling witness for defendant was being cross-examined by counsel for the plaintiff 'by putting leading questions in the usual way', as the report expresses it, and upon objection taken, Alderson B, said:

I apprehend you may put a leading question to an unwilling witness on the examination in chief at the discretion of the Judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not.

I consider the learned Baron overstated the position, however, and that there is no absolute right to put leading questions in cross-examination. The basis of the rule that leading questions may be put in cross-examination is the assumption that the witness's partisanship, conscious or unconscious, in combination with the circumstance that he is being questioned by an adversary will produce a state of mind that will protect him against suggestibility. But if the Judge is satisfied there is no ground for the assumption, the rule has no application, and the Judge may forbid cross-examination by quesetions which go to the length of putting into the witness's mouth the very words he is to echo back again. (cf R v Hardy [1794] 24 How St Tr 659, per Buller J, at p 755). Answers given in such circumstances usually would not assist the Court in its investigation because they would be valueless, and in the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination. This brings out an essential feature of trial by the British Courts, namely, that it is the duty of the Judge to regulate and control the proceeding so that the issues for adjudication may be investigated fully and fairly."

51 The second Victorian case relied upon by the Director was R v Thynne [1977] VicRp 10; [1977] VR 98, where the Full Court of the Supreme Court of Victoria discussed the issue of leave being granted to cross-examine a witness called by a party who had not been declared to be hostile. Reference was made to the course adopted by Dixon J in R v Neal, Regos & Morgan [1947] ALR 616 (at 101):

"Dixon J (as he then was) avoided these difficulties by the course he took in R v Neal, Regos and Morgan (17 April 1947) reported only in a brief and inadequate current note in [1947] ALR 616. Gillard J, who was counsel for the prosecution in that case, has kindly amplified that note by reference to his own recollection of the facts, which recollection is supported by that of the former Mr Justice Norris who was junior counsel for the defence.

During the course of the prosecution case, a witness for the prosecution gave evasive answers and professed himself unable to recollect certain events. On an application by counsel for the prosecution to have the witness declared hostile and for permission to cross-examine the witness by leading questions in conformity with the terms of the written statement made by the witness in the course of the preparation for the trial. That leave was limited to cross-examination as to the facts recorded in the statement in rwiting. There was no leave to cross-examine the witness generally. Dixon J, reserving to counsel the right to make application at a later stage for leave to cross-examine generally if it should then appear that the witness was 'hostile' in the relevant sense - cf Phipson, 10th ed, s 1532, Cross, 3rd ed, p 204; Cross (Australian ed), p 256; R v Heyden and Slattery [1959] VicRp 18; [1959] VR 102; Bassett v Ferguson [1952] VicLawRp 62; [1952] VLR 481, at p 483; and McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95 at pp 103-4; [1961] HCA 49; [1962] ALR 243 at pp 246-7.

The cross-examination was, accordingly, in the first instance, confined to establishing the facts stated in the previous written statement: it was not directed to establishing that the witness had made the previous written statement. Counsel was permitted to place the previous written statement in the hands of the witness and to put to the witness direct or leading questions as to what were the facts, such questions being based on and conforming to the statement of those facts contained in the writing. Counsel was not permitted to read aloud to the witness any passages in that written statement, nor was the witness permitted, in answering those questions, to read aloud to the jury any passage in the written statement.

This course is stated in the report to have been based on the decision in Melhuish v Collier [1850] EngR 709; (1850) 15 QB 878; 117 ER 690. In that case, however, the cross-examination appears to have been directed to the making of the statement. The learned trial Judge (Williams J) ruled (15 QB at p 879; 117 ER at p 691) that the questions might be put not to discredit but to remind the witness. The procedure adopted by Dixon J in R v Neal, Regos and Morgan, supra, seems to have derived from the submission made in argument (15 QB at p 886); 117 ER at p 693) and referred to in the judgment of Coleridge J (15 QB at p 889; 117 ER at p 694). It appears to be in accordance with the proposition stated in the passage from Roscoe's Civil Evidence 20th ed, vol 1, at p 170 cited in the Full Court judgment in R v Hunter [1956] VicLawRp 5; [1956] VLR 31, at p 37 with the comment, however, that 'Roscoe gives no authority for the limitation he suggests, and the cases to which we have referred do not suggest any such limitation'. The comment suggests that the case of R v Neal, Regos and Morgan, supra, had escaped the notice of the Full Court."

52 It will be seen that in neither of these cases was leave given to counsel to re-examine a witness by leading questions. They were not cases in which the trial Judge considered a cross-examination of the witness incorporated leading questions which led to a need to enable counsel to conduct a leading re-examination to enable the issues to be fairly adjudicated.

53 The common law position would seem to be properly stated in Best on Evidence, 8th ed, at 595:

"645. 6. With respect to the right of a party to discredit his own witnesses. We will consider the matter, first, as it stood at the common law, and secondly, under the 17 & 18 Vict c 125, and 28 & 29 Vict c 18. Firstly, then, of the common law. It was an established rule that a party should not be allowed to give general evidence to discredit his own witness; ie general evidence that he is unworthy of belief on his oath. By calling the witness, a party represents him to the court as worthy of credit, or at least not so infamous as to be wholly unworthy of it; and if he afterwards attack his general character for veracity, this is not only mala fides towards the tribunal, but, say the books, it 'would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke of him with the means in his hand of destroying his credit if he spoke against him'. A party might, however, discredit his own witness collaterally, by adducing evidence to show that the evidence which he gave was untrue in fact. This does not raise the slightest presumption of mala fides; and it would be in the highest degree unjust and absurd if parties were bound by the unfavourable statements of witnesses with whom they may have no privity, and who are frequently called by them from pure necessity."

54 It can be accepted from these authorities that in an exceptional case where the issues for adjudication would otherwise not be fully and fairly investigated, leave may be granted to counsel for the Crown to ask leading questions of his witness after a cross-examination in which counsel for the defence has gone so far as to put what Barry J described as "into the witness' mouth the very words he is to echo back again". However, in such a case application would need to be made to the learned Judge for the right to take that course. In very exceptional circumstances the trial Judge might of his own initiative invite counsel for the Crown to make that application, but not before hearing argument. What should not happen is what happened here. That is, the learned trial Judge ruling without application that the Crown prosecutor should be at liberty to ask leading questions in re-examination. Nor under any circumstances should a trial Judge say what the learned Judge said here, namely, that the witness in question was "in your side of the court".

55 The question, however, is whether a miscarriage of justice occurred in this case. It does seem that if counsel for the Crown had made application for the right to ask leading questions by way of re-examination of that privilege would have been granted. It would have been a matter for discretion of the learned trial Judge and given the cross-examination that had taken place, one could not say that the learned trial Judge would have been precluded from granting that right to counsel for the Crown. In any event, the questions asked by counsel for the Crown did not in the end result achieve anything. Although counsel for the Crown put to Mr Rawcliffe that he was lying, this was firmly denied. When asked why he had not reported to the police what Diaz had told him, Mr Rawcliffe gave an explanation which may or may not have been accepted by the jury. There was no re-examination by way of leading questions in which Mr Rawcliffe was destroyed.

56 Although entirely unsatisfactory that the matter should have proceeded in the way in which it did, and although it was most inappropriate for the learned trial Judge to have rebuked counsel for the appellant in the presence of the jury as she did, I am unable in the end to say that there has been any miscarriage of justice. Had the proper process occurred, the same result (save for the learned trial Judge's unfortunate observation) may well have resulted.

57 It is true that the learned trial Judge did not in her directions to the jury advert to this issue. As was pointed out by the Director, no application was made by experienced counsel for the appellant for that to be done. Perhaps this was for tactical reasons. It may not have been in the best interests of the appellant to have had the matter aired again before the jury. Generally, a trial Judge will inform the jury as to why the counsel for the Crown has been given leave to impugn his own witness, and that will normally be in circumstances where leave to cross-examine has been granted under the provisions of s 20 of the Evidence Act. In the circumstances of this case the failure to advert to what had occurred did not, in my view, bring about any miscarriage of justice. I am therefore of the view that the appeal against conviction should be dismissed on both grounds.

58 The appellant was sentenced on the two counts of possession of methylamphetamine with intent to sell or supply to imprisonment for 5 years and 3-1/2 years respectively to be served concurrently and cumulatively on the sentence which had been imposed upon the appellant in the District Court at Perth on 4 October 1995 when he was sentenced to 4 years' imprisonment with eligibility for parole. The learned trial Judge declined to make a parole eligibility order in relation to the effective 5 year sentence imposed. The appellant seeks to appeal the sentence on the ground that it was a manifestly excessive sentence given the circumstances of the offences in question. He also contends that the learned trial Judge erred in law in failing to make a parole eligibility order.

59 The sentences imposed by the learned trial Judge took account of all relevant factors, including the circumstances of the offence, the level at which the appellant was placed in drug dealing and the appellant's personal circumstances. The effective sentence of 5 years' imprisonment was consistent with the decision of this Court in Darwell (1997) 94 A Crim R 35 where it was clearly stated that methylamphetamine is now regarded as being at the higher end of the scale of seriousness in the hierarchy of prohibited drugs and if not equated to heroin and cocaine, is close enough to those drugs to be regarded as in the same category: see per Malcolm CJ at 40. No exception can thus be taken to the overall sentence imposed upon the appellant.

60 In considering the question of parole the learned trial Judge took account of the fact that the appellant had a previous conviction for drug trafficking and whilst on parole in relation to the sentence imposed for that conviction, had committed the offences in question. Her Honour considered this factor should be taken into account and declared that she was not prepared to allow eligibility for parole. At the hearing of the appeal counsel for the appellant contended that there had been a failure on the part of the learned trial Judge to take into account the four factors set out in s 89(2) of the Sentencing Act 1995. Whilst it is true that the learned trial Judge did not refer in detail to each of these factors, it is implicit in her Honour's reasons that she took into account the seriousness and nature of the offences; the circumstances of the commission of the offences; the antecedents of the appellant; and circumstances relevant to the appellant, particularly the issue of his prior performance on parole. Bearing in mind the appellant's failure to comply with the conditions of parole which applied in relation to his October 1995 drug conviction, it was, in my view, open to the learned trial Judge to conclude that this was a case in which a parole eligibility order should not be made. The discretion to grant parole eligibility cannot be triggered unless there is something in the material before the sentencing Judge which points positively towards the appropriateness of parole (Thompson v R (1992) 8 WAR 387 at 395 - 6; Lowndes (1997) 95 A Crim R 516 per Malcolm CJ at 528) and there was in truth nothing which here pointed positively towards the appropriateness of parole for the appellant. In my view the application for leave to appeal against sentence should therefore be refused.

Rawcliffe v The Queen [2000] WASCA 239

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Judgment (149 paragraphs)

Rawcliffe v The Queen [2000] WASCA 239 (31 August 2000)

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Cases Cited (10)