Belated disclosure of H's statement (Chami 8, Ghanem 7)
126 Early on the morning of Thursday 23 May 2002 the defence parties were provided with a previously unserved statement of H. It was dated 14 September 2000 and it provided H's version of events involving the complainant. The Crown had closed its case the previous day.
127 Counsel for Chami (Ms Francis) sought an adjournment to consider what to do. After discussion the matter was stood down until midday for preliminary inquiries to be made. Upon resumption, Ms Francis applied for a further adjournment to investigate certain matters revealed by the Crown in the interim relevant to the credibility of the material in H's statement. Counsel for Ghanem (Ms Langley) sought the discharge of the jury, alternatively for leave to cross examine the complainant further.
128 The matter of concern was H's assertion that he was present when the complainant had been picked up from the Marion Street car park after the first set of assaults and driven by two men in a "red Mazda two door" to "some markets in a carpark". The significance in relation to Chami's and Ghanem's cases was that the complainant had in her first statement to the police described a number of assaults, including the production of the gun, as having occurred in the "red…hatchback with two doors" in which she had been driven from the Marion St carpark to the Bankstown Trotting Club. In her second statement and in her evidence, the complainant said that she was mistaken in her first statement and that it was a black two door hatchback in which she had been driven from Marion Street to the Bankstown Trotting Club. She also said that the gun was produced in the later red car, not the black car. The red car had four doors and offences involving the appellants Chami, Ghanem and Bilal Skaf were said to have occurred in it.
129 Judge Finnane agreed to adjourn the trial until the following Monday, explaining why he was not disposed to discharge the jury and why a limited adjournment was adequate to ensure a fair trial (Tr pp942-4). It was indicated that the defence would have the opportunity of further cross-examining the complainant and of issuing subpoenas, notwithstanding his Honour's concerns about a fishing expedition.
130 Before the hearing was adjourned, the Crown recalled Detective Sergeant Porta on the voir dire to give evidence about police investigations responsive to the matters raised by H in his statement. The officer was cross examined by Ms Francis and Ms Langley.
131 When the trial resumed the following Monday, Detective Sergeant Porta gave further evidence in the absence of the jury and he produced the documents that had previously been called for by the representatives of the accused.
132 Ms Francis then sought the discharge of the jury on the basis of inadequate Crown disclosure that had affected the fairness of the trial in respect of Chami. Counsel indicated that she did not wish to have the complainant recalled. Ms Langley also sought a discharge on behalf of Ghanem, indicating a similar attitude as regards the opportunity for further cross-examination of the complainant.
133 The applications to discharge the jury were refused. This ruling is the subject of these grounds of appeal by Chami and Ghanem.
134 To understand the issues it is necessary to consider the material in the complainant's first statement, the material in H's statement, the arguments advanced at trial and pressed on appeal as to the nature of the prejudice occasioned to the accused, the material established by and during the course of Detective Sergeant Porta's voir dire evidence and the reasons given for the refusal of the application.
135 In her first statement to the police the complainant had said that she was driven away from the Marion Street car park in a "grungy" red hatchback with two doors. She made several corrections in her second statement. One of them was to assert that it was a black car that drove her from the Marion Street car park to the Bankstown Trotting Club car park. Her second statement and trial testimony were also to the effect that the red car in which several sexual assaults occurred and the gun was produced had four doors. There was a lot of cross-examination about discrepancies and confusion concerning the red and black cars and the description of the driver of the red car (Tr pp 260, 267, 268, 277, 278, 281).
136 H's statement was exculpatory of any criminal conduct. It was thus at variance with his own plea of guilty which had earlier been accepted by the judge, to the knowledge of the present appellants. The Crown prosecutor was not challenged as to her decision not to call H as a Crown witness, having regard to his unreliability. Nor was it disputed that evidence had been provided to his Honour in sentencing proceedings that indicated that H suffered from intellectual disability. H's statement contained nothing that directly assisted the cases of the two accused. Its belated production was not said to have been deliberate.
137 Counsel for Chami submitted to the trial judge and in this Court that H had raised the possibility of a second red car (described by H as a "real shit box") different from the four-door red Pulsar owned by Chami in which sexual intercourse involving Chami admittedly took place. The argument was that the possibility of there being two red cars opened the way for Chami to distance himself from the complainant's evidence that the driver of the red car took a gun out of the glove box and brandished it. (The production of the gun was part of the evidence supporting the detain for advantage charge based upon several events in (Chami's) red car.)
138 Counsel for Ghanem took a different position, both at trial and in this Court. H's statement was said to have revived the possibility that the complainant was correct the first time when she said that she was taken from the Marion Street carpark in a two door red hatchback. It was true that Ghanem was not alleged at any time (not even by H) to have been a passenger in the first car, and that it was at all times alleged that he arrived at the Trotting Club in the red car driven by Chami. Nevertheless, it was argued that the new material in H's statement could have been used as a basis of challenging the complainant's general credibility.
139 As indicated, counsel for neither accused took up the offered opportunity for further cross-examination of the complainant. That offer was made by the Crown prosecutor. The judge had his doubts, but the matter never arose for decision in light of the position taken by the two accused. Ms Langley argued that it would do injustice to her client's case to be required to retrace her steps in light of the material in the belatedly-produced statement.
140 Detective Sergeant Porta gave evidence and produced records referable to police investigations of H's claim that a "real shit box" two door red Mazda driven by a mate called Khalid or Ahmed who went to Condell Park High School gave the complainant a lift, stopping at McDonalds Bankstown. Investigations at the High School disclosed that Ahmed and Khalid were common names. No red "two door shit box" was seen at the school, which was checked over a number of days (Tr pp 949-950). There was no video surveillance tape made and/or retained at any of the public places at which the vehicle stopped en route.
141 The officer's evidence showed that the information provided by H (for what it was worth) was investigated and had produced nothing of relevance.
142 In the upshot, the accused were given the period between Thursday and Monday to make further inquiries of their own. It is very difficult to conceive what inquiries could have been done that were not available to be done in the time permitted. The trail was obviously very cold.
143 In his reasons of 27 May 2002 refusing a discharge Judge Finnane referred to the fact that H had pleaded guilty to offences against the present complainant as well as offences against other persons. He was developmentally delayed. His Honour then analysed the material in H's statement, including what he said about the red car. The judge observed that most of the statement was completely false in light of H's plea of guilty. Reference was made to the extensive cross-examination of the complainant earlier in the trial about the changes from her first statement of 1 September to her second statement of 21 September following discussion with Senior Constable Brazel on 14 September. The judge noted that it had been put to the complainant a number of times that the assaults involving Chami and later Ghanem might have taken place in a black vehicle, and that the complainant had denied this and said that they occurred in Chami's red car. The judge then referred to the evidence of Sergeant Porta about the ultimately fruitless attempts to establish the existence of the red vehicle referred to in H's statement. He concluded that the nonproduction of this information could not materially have affected the credibility of the complainant. He continued:
In my opinion this material could not be said to have any relevance or any worth. The material is contained in a false statement by a person who has pleaded guilty. It could not be put as a matter of fact by either counsel who might wish to rely on it, and calling him would not establish it as a fact because he has pleaded guilty since he made the statement.
In my opinion this statement is no more relevant than the supposition that anybody might come up with that there may have been another car or cars around the place at some time, notwithstanding the evidence that there was not. The fact that Mr [H], in a false statement, claims that there was a car driven by mysterious persons who cannot be really identified, nor can the car, does not, in my opinion, raise any fact of any significance or relevance or bearing upon this case.
I am unable to agree that any forensic advantage has been lost and I am unable to agree in any way that there has been an unfair trial because this material was not produced. In my opinion the police have no obligation, nor has the Crown, to produce every statement made by someone, even a co-accused, in a case such as this, particularly where it is obvious that what is said is false.
144 The judge referred to the remarks of King CJ in an unreported South Australian case (R v K (1991) 161 LSJS 135 at 140, cited in R v Lewis-Hamilton (1997) 92 A Crim R 532 at 537) relevant to the Crown's duty of disclosure. The Chief Justice had said:
This obligation [of disclosure] must in principle extend… to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises … only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.
145 These two appellants submit that the judge was wrong to have regarded H's statement as having no relevance or materiality. We are inclined to agree and are troubled by the categorical terms of His Honour's remarks. But those remarks fall into somewhat clearer focus when it is recognised that the question at issue was the impact of the material in H's statement upon the complainant's credibility.
146 There was no question of calling H as a witness at trial. The prosecutor's decision not to rely upon H's testimony had not been questioned and it remained open to any defendant to call H as his witness. The reality was that no one wanted him at the trial.
147 H's statement opened up the possibility that a second red car driven by two of his mates was present at Bankstown early in the evening. The complainant got into the car, but no offences occurred in it, according to H. The police had followed this lead and got nowhere. The trail was very cold by the time of the trial, and the prospect that it might produce something of assistance to the defence remained speculative to the point of nonexistence.
148 The whole burden of the application for discharge rested upon the loss of opportunity to have used the information in H's statement in the earlier cross-examination of the complainant. The Crown prosecutor was willing to recall the complainant if necessary, but this offer was not taken up. Instead, it was argued that some material advantage had been lost earlier in the trial when the cross-examination had been framed on the basis of a defence case that had not had access to H's statement.
149 The suggestion that defence counsel were led down some path resulting in a miscarriage is however speculation without foundation. The principles of the Queen's Case ((1820) 2 Brod & Bing 284, 129 ER 976) as reformulated in s44 of the Evidence Act meant that the manner in which the complainant could have been confronted with the statement was severely constrained. So severely, that it was highly unlikely that defence counsel would ever have taken the risk of bringing H into the picture or putting his statement before the complainant. The opportunity to put a two red car hypothesis before the complainant by way of further cross-examination was one that counsel decided not to take up.
150 We do not agree that the judge erred in his refusal to discharge the jury. We agree with the main thrust of his remarks which were directed at the conclusion that no forensic advantage had been lost such as to have caused the trial to miscarry at that stage.
151 These grounds fail.