REGINA v. KNEEBONE [1999] NSWCCA 279

No. 60300 of 1998 SPIGELMAN, CJ. GREG JAMES, J. SMART, AJ.

1 SPIGELMAN, CJ: I agree with Greg James J and Smart AJ. 2 GREG JAMES, J:

Nature of the appeal 3 This appeal was heard on 6 August 1999 and at the conclusion of argument we ordered that the extension of time sought be granted, the appeal upheld and a new trial ordered, reserving our reasons therefor. The following are my reasons for joining in those orders. 4 The appellant had been indicted and tried on two counts. This is an appeal from a conviction on one count of, on or about 24 February 1995, having sexual intercourse in circumstances of aggravation without consent under s.61J of the Crimes Act 1900, the other count being a charge of indecent assault in circumstances of aggravation upon the same complainant between 19 December 1993 and 18 December 1994, an offence under s.61M of the Crimes Act. The appellant was acquitted of that charge. The circumstances of aggravation in each case were that the complainant was at the time under the age of 16 years and under the authority of the appellant. 5 In consequence of his conviction, the appellant was sentenced to a minimum term of six years penal servitude to commence on 20 February 1998 and an additional term of three years.

Evidence on appeal 6 The appeal originally came before us on 27 May 1999 but due to the state of the list was unable to be heard. In consequence of what we were then told about the basis of the appeal, the matter was re-listed and the applicant, without opposition by the Crown, admitted to bail. An opportunity was thereby afforded to the Crown to put on evidence in reply to certain affidavits which it had been conceded might be read on this appeal, of the appellant's wife, who was also the complainant's mother, and of the appellant's barrister and solicitor. No evidence was put on by the Crown nor was it sought to cross-examine the witnesses. Those affidavits relate to the circumstances surrounding the decision by both the Crown and the defence not to call the wife, the evidence she swears she could have and can give at trial and the failure of defence counsel to seek certain directions relating to complaint evidence. The evidence in those affidavits was admitted by consent, is unchallenged and should be accepted.

Grounds of appeal 7 Various grounds of appeal against conviction had been filed and subsequent to the matter coming back before us, notice was given by the appellant of an intent to seek to rely upon two supplementary grounds of appeal. It is to those two grounds that the affidavits to which I have referred relate. 8 The original grounds were:- "1. The learned trial judge erred in allowing evidence to be given of out of court representations made by the complainant to June Saillard. 2. The learned trial judge failed to adequately and/or properly direct the jury in relation to out of court representations made by the complainant. 3. The learned trial judge failed to adequately and/or properly direct the jury in relation to the terms of the out of court representations made by the complainant and the delay in the making of complaint of sexual assault upon the complainant by the appellant. 4. The learned trial judge erred in failing to warn the jury as to the potential unreliability of the complainant's evidence pursuant to s.165 Evidence Act 1995. 5. The verdict of guilty is unsafe and unsatisfactory. …" 9 The supplementary grounds are:- "5A. The failure of the Crown to make adequate and proper enquiries as to the availability of NB [the appellant's wife and the complainant's mother] and the detail of her recollection of relevant events to the allegations by the complainant caused a miscarriage of justice; alternatively 5B. A miscarriage of justice was caused by the failure of the Crown to call NB to give evidence at the trial of the appellant." 10 The Crown did not oppose the raising of those supplementary grounds. These latter assert as grounds of appeal one of the matters relied upon by the appellant in the original written submissions in support of the last of the grounds originally asserted.

The "unsafe" ground 11 The original formulation of that ground as a basis for asserting a miscarriage of justice has occurred at trial is no longer appropriate (Fleming v. R. (1998) 158 ALR 379). 12 It is clear after examination of the written submissions that, by that ground the appellant sought both to assert that the evidence, as it was at trial, was such that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty (M v. The Queen (1994) 181 CLR 487; Jones v. The Queen (1997) 191 CLR 275) and that there was procedural irregularity in the conduct of the trial, in each case leading to a miscarriage of justice. 13 Since the evidence on both counts was almost entirely, and was, where crucial, solely, that of the complainant, the acquittal of the appellant was relied upon in support of the first submission on this ground that the jury should have been in doubt on both counts due to inconsistency or lack of credibility. 14 In addition, asserted unexplained and unreasonable delay in complaining, inconsistency between the terms of that complaint and the circumstances of the event as later asserted in evidence by the complainant, the family dynamics as revealed in the evidence and a number of matters concerning what are said to be inadequacies in the trial judge's directions, particularly on how the jury might properly use the evidence of complaint, are also relied on as a "constellation" of features which, in combination, it is asserted, taint the appropriateness of the conviction. 15 It was also a complaint that the trial judge had failed to warn the jury as to various reasons, including her age, said to go to the potential unreliability of her evidence notwithstanding a request and s.165 of the Evidence Act 1995. Further it was argued that it was necessary that the jury be instructed that the appellant could not be found guilty in sole reliance on the evidence of the complainant unless the jury were satisfied that the complainant was a reliable and truthful witness in respect of the material issues in the case and it was contended that the absence of such a direction, particularly in the absence of a s.165 direction, tainted the summing up.

Rule 4 and the directions 16 The Crown contended that as no objection was taken by trial counsel to the matters now raised concerning the adequacy of those directions, leave to argue them is required pursuant to Rule 4. The affidavit of trial counsel is directed, in part, to explaining that no tactical gain was sought to be achieved by the admitted failure to object. Whether that would in another case be sufficient, here, the Crown has, however, conceded that, taken as a whole, the directions as to complaint and delay in complaint and as to the appropriate course the jury should be instructed they should take when considering the evidence of the complainant raise concerns: (see Regina v. Murray (1987) 11 NSWLR 12) and further accepts that there was a risk that his Honour's otherwise appropriate directions concerning possible explanations for the delay in complaint may have been undermined by his Honour's reference to reasons not the subject of evidence. Thus he, thereby:- "May have unwittingly misled the jury into assuming that there was in fact some other reason, unexpressed by the complainant, but know to the judge for her silence." ( Regina v. Williams [1999] NSWCCA 9 at para.26.) 17 In the light of that concession, I would have considered it appropriate that leave be granted in respect to grounds dealing with those matters. However, when one has regard, in the context of the matters raised by the original grounds, to the matters raised by the appellant's supplementary grounds of appeal, which matters the Crown concedes, raise in the circumstances of this case, a miscarriage of justice, it is not necessary for me to deal with those grounds challenging the trial judge's directions in any further detail, than to say that I, too, share the concerns the Crown has expressed, particularly because the Murray direction in such a case needs to be clear and forceful having regard to the matters examined by this court in Regina v. Dwyer [1999] NSWCCA 47, in the judgment of Dunford, J. at paras.13-20 and that if complaint evidence is to be admitted as of right or by leave, the basis for its admission and use and the dangers associated with it and the proper instruction for the jury need careful consideration: Graham v. Regina (1998) 157 ALR 404.

The missing witness 18 The absence at trial of the evidence of the complainant's mother in circumstances which it is contended do not adequately justify the Crown's decision not to call her, she being, on the evidence of the complainant, a material eye-witness to the very event charged founded the second submission originally made in support of the "unsafe" ground and is now the focus of the supplementary grounds.

A summary of the trial 19 The complainant gave evidence that her parents, having separated, she had lived with her father for a substantial period of time and then later with her mother at premises in Bathurst where her mother was living with the appellant. She asserted that shortly after commencing to live with her mother and the appellant, he had committed the acts the subject of the first count. 20 Other evidence was elicited from her of other incidents said to illustrate guilty passion or relationship. 21 On the second count, she gave evidence that on 24 February 1995, when she was 14 years of age, she had arrived at home from school and that after a short discussion with the appellant, she went to her room. She alleged that a short time later he came to the room, abused her verbally, hit her heavily in the face causing her nose to bleed (staining her clothing), thereafter struck her a number of times, pushed her against a wall and choked her with his hands around her neck (leaving marks), threw her onto a bed, removed her clothing and despite her attempts to get away, forced sexual intercourse upon her while she was screaming in protest and for help. She asserted that during the intercourse her mother opened the door to the room, stood at the doorway, looked at what was occurring and said, "That's enough". She said she looked at her mother who walked away leaving the door to the room open. She said that the appellant continued intercourse for a short while then got off her and left the room. 22 She said that subsequently while she was in the bathroom attempting to wash herself, she was pushed by the appellant and fell into the bathtub, hitting her head on the back of the bath. She got out of the bathtub, washed her face, started to pack her bags and her mother came to her asked what had happened. She replied, "Like you don't know". After she ascertained the whereabouts of the appellant, she grabbed her bag and ran leaving the house and going to the outside of a hotel further down the street where she spoke to passers by while crying and obtained sufficient money to get a cab. In due course, she went to the home of Mr. and Mrs. Saillard where injuries and blood staining, consistent with the assault in the bathroom and consistent with certain of the physical injuries she claimed to have suffered in the bedroom, were photographed. Subsequently she spoke to a police officer about that assault saying nothing about the enforced sexual intercourse. She was examined by a doctor that night but again made no reference to a sexual attack. 23 She gave as her reason for that that the appellant had told her, "He'd hunt me down and kill me if he seen me on the street" and that he had threatened, before she left the house, to break her nose. Neither of those threats appeared to relate particularly to possible disclosure of a sexual nature to the assault. 24 About a year or so after the incident in Queensland, in discussion with Gina Waits, Mrs. Saillard's daughter, in response to some gentle questioning, she said: " … my mum's boyfriend had raped me". 25 Subsequently, after Mrs. Saillard raised the possibility of a report to the Department of Community Services, the complainant said that she had been raped by her stepfather. 26 This account encapsulates the allegations, stripping them of circumstantial detail which might well have been considered by a jury to have been important on issues of credibility. In particular on that issue, it is notable that the complaint in respect of the assault by the appellant in the bathroom made on 24 February 1995, resulted in an almost immediate charge of the appellant, with having assaulted the complainant occasioning to her actual bodily harm. Although due to appear at the Bathurst Local Court on 27 March 1995 to answer that count, the appellant travelled to South Australia. He was convicted in his absence and subsequently returned to New South Wales in May 1997 by which time the sexual offence allegations had come forward. 27 The appellant had been interviewed in 1995 as to the alleged assault and had given an account denying allegations that he had struck the complainant several times in the face in her room, that he had occasioned her nose to bleed or that he had in that room attempted to choke her but admitting an altercation in the bathroom in which he knocked her into the bath. This interview was tendered in evidence at the trial. 28 The appellant's wife had denied any assault had occurred when spoken to by the police shortly after. 29 The appellant gave sworn evidence of an argument and the altercation in the bathroom but notwithstanding evidence of injuries consistent with the assault of the complainant, denied striking or choking her. He also denied sexually attacking the complainant. He denied the events alleged to be the basis for the indecent assault count. 30 Notwithstanding, that on the evidence of the complainant, her mother was a material eyewitness whose evidence might crucially affect the jury's decision on the disputed event the Crown did not call her but sought a Jones v. Dunkel direction in its favour because the defence had not called her. As will appear from matters I will deal with more extensively later, in particular that the Crown had not sought to interview the witness, it was hardly open to the Crown to seek a favourable direction on the basis the jury should consider the witness in the defence "camp". 31 On 24 April 1998, the complainant's mother was called by the defence and gave evidence on sentence. The Crown did not cross-examine. The trial judge drew her attention to what the complainant had asserted about her presence during the sexual assault and she denied anything like that had happened.

Evidence in this court 32 In her affidavit of 6 May 1999 in this court, the mother denies having seen the sexual assault or saying the things her daughter alleged. She says she gave a statement to the police about the assault and was contacted by the police before the trial about a subpoena and told she was on the list of witnesses. She attended the trial and stayed throughout ready to give evidence. She was not interviewed by either side. 33 The appellant's solicitor says in his affidavit that the Crown Prosecutor at the end of the first day of trial approached the defence barrister and solicitor in their chambers at the courthouse enquiring whether the defence intended to call the mother to give evidence. It was pointed out to the Crown Prosecutor that her statement formed part of the brief upon which the appellant had been committed for trial. The following morning, the Crown Prosecutor advised the defence that he probably would not call the witness as "he had formed the opinion that her evidence would be unreliable". The defence solicitor did not enquire as to the basis on which that opinion had been formed. He further deposes that it had been accepted by the defence that the prosecution would call the witness and for that reason she had not been interviewed. 34 After the Crown Prosecutor had informed the defence that he had decided not to call her, it was decided by the defence not to call her since no proof had been obtained and the defence were not aware from her what she might say as to the allegations of the complainant, particularly, seeing her "defacto husband having sex with her daughter and saying the words 'That's enough' or something similar". He asserts that it is his recollection that the decision was made not to call her because of "what we believed to be the state of evidence of the complainant and where it stood in relation to the other witnesses". He said:- "I was of the view as well that [she] may not have been truthful to the police when she gave the statement at the Bathurst Police Station about the circumstances of the alleged physical assault." 35 He further expresses the belief that the Crown Prosecutor before the trial, when informing the jury panel of potential witnesses, included the name of the witness and her address as a Crown witness 36 Defence counsel has, in his affidavit, given evidence generally confirmatory of the solicitor's evidence. 37 It is submitted that the absence of this evidence where credibility is so crucial has led to a miscarriage of justice. The Crown has, given what it asserts are the very unusual circumstances of this case, arrived at the view that the matters raised in relation to the supplementary grounds together with the additional matters raised in relation to the original grounds, have led to a miscarriage of justice and submitted that the appropriate course is to order a re-trial as such miscarriage can be more adequately remedied by such an order than by any other order which the court is empowered to make: s.8(1) Criminal Appeal Act 1912.

Submissions 38 Both counsel have provided detailed written submissions in particular dealing with the role of a Crown Prosecutor in relation to calling witnesses at trial for which we are grateful. Those submissions extensively review the law here and abroad. There is little if any difference between the submissions as to the law we should apply.

The Australian position 39 The High Court of Australia in The Queen v. Apostilides (1984) 154 CLR 563 at 575 laid down a number of general propositions as being applicable to the conduct of criminal trials in Australia:- "1. The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may then make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, would be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge. 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice." 40 In discussing the circumstances in which a miscarriage might be occasioned by the failure to call a witness, the court said:- "In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. … So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the essential question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory. (at 577-578)." 41 In Whitehorn v. The Queen (1983) 152 CLR 657, Deane, J. (at 663-664) characterised the obligation of a prosecutor for the Crown in these terms:- "In performing the function of presenting the case against an accused, a Crown Prosecutor must act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one." 42 Dawson, J., for his part, said at 674-675:- "[a]ll available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them, then the selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court. … No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trail." 43 The guidelines of the New South Wales Director of Public Prosecutions issued by the DPP in March 1998 say:- "[t]he Crown should generally call all apparently credible witnesses whose evidence is essential to the complete unfolding of the Crown case or is otherwise material to the proceedings. If a decision is made not to call a witness where there are identifiable circumstances establishing that his or her evidence is clearly unreliable, the Crown should where possible assist the accused to call such a witness by making him or her available. … Mere inconsistency of the testimony of a witness with the Crown case is not grounds for refusing to call the witness. … A decision not to call a witness otherwise reasonably to be expected to be called should be notified to the accused a reasonable time before the commencement of the trial with an indication of the reasons for the decision."

New South Wales Bar Rules 44 The New South Wales Bar Rules, by Rules 62 and 66B provide:- "62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts. … 66B. A prosecutor must call as part of the prosecution's case all witnesses:- (a) whose testimony is admissible and necessary for the presentation of the whole picture; (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; (c) whose testimony or statements were used in the course of any committal proceedings; and (d) from whom statements have been obtained in the preparation or conduct of the prosecution's case; unless:- (e) the opponent consents to the prosecutor not calling a particular witness; (f) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or (g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that:- (h) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)-(d), if the prosecutor believes on reasonable grounds that the testimony of that witnesses is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and (i) the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision." 45 The authorities in Australia have been extensively reviewed recently by the Queensland Court of Appeal in The Queen v. Wilson CLS (1997) QSC CA 38 by the majority, Fitzgerald, P. and Lee. J.

Overseas 46 In the United Kingdom, the position is covered by the propositions laid down by the Court of Appeal in The Queen v. Russell-Jones (1995) All ER 239 where the court said:- "… 4. The next principle is that the prosecution ought normally to call or offer to call all the witnesses who gave direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness' evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded … If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say 'incredible', then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called … 5. It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal. 6. The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he give as account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others. 7. A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken." 47 The Crown has drawn to our attention the decisions The Queen v. Wilson (1997) 2 NZLR 500 and Commonwealth of Pennsylvania v. Horn 150 Atlantic Reporter 872 [1959], both of which generally accord with the conclusions reached in the Australian cases. 48 The position in Canada appears to differ to some degree: Regina v. Cook 114 CCC (3d) 481 but that may be explicable by the development of the Canadian law of pre-trial disclosure and the availability there of an opportunity for the accused to cross-examine its own witness.

Ascertaining unreliability 49 Since both experience and logic confirm that merely because a witness' evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability: see Apostilides (supra, at 576); DPP Guidelines (supra), at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion. 50 In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice. Apostilides (supra) deals with the consequence of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: Regina v. Anderson (1991) 53 A. Crim. R. 421. 51 The advisability, if not necessity for a conference is reinforced by the decisions in Tran v. Magistrates' Court of Victoria & Anor (1998) 4 VR 294; Regina v. Armstrong (1998) 4 VR 533, where the prosecutor refused to interview the witness or to consider notes proffered by counsel for the defence indicating the substance of the evidence it was anticipated the witness would give; and R. v. O'Brien (1996) 66 SASR 396 particularly in the judgment of Doyle, CJ. at 398-399. There the prosecutor had sensibly spoken to and proofed the witness before concluding that there was a clear allegiance on the part of the witness to the accused. 52 In Regina v. Shaw (1991) 57 A. Crim R. 425, the Victorian Court of Criminal Appeal had regard to an assertion that the witness was unreliable and found the assertion unacceptable in the absence of the prosecutor having, by an appropriate technique such as conferring with the witness, satisfying him or herself properly of the witness' capability to give relevant and truthful evidence. In relation to an assertion that the prosecution should be able to disregard witnesses inconsistent with the general case. Nathan, J. said (at 450):- "… eye witnesses do not belong to a camp, but are within the class of persons from whom juries expect and are entitled to hear. The characterisation of witnesses being in camps is unfortunate. It necessarily implies that the prosecutor might choose to call only those witnesses favourable to his camp. This is an absolute derogation of a prosecutor's responsibilities." 53 I agree with his Honour's observations. They accord with the generally accepted view of the role and responsibility of a Crown Prosecutor (see, for example, Richardson v. The Queen (1974) 131 CLR 116.

Other matters 54 It is not necessary in this case, since the witness did not give evidence, to consider whether the defence was placed at an improper disadvantage by being forced to call the witness. Nor is it necessary, since the Crown has not, even now, exposed the prosecutor's reasons, to consider whether the decision was based on some view he might have, even if mistakenly, considered that the Crown might be deprived of an appropriate opportunity to cross-examine the witness, since, in proper circumstances, resort might have been made to an application under s.38 of the Evidence Act. This observation is not to be taken as an indication by me as to whether such an application might properly be made or as to how any such application should be resolved. Section 38 of the Evidence Act refers to the concept of the witness being "unfavourable". In the context of a criminal case, care may have to be given to the question of what "unfavourable" to the Crown means. That concept will not necessarily be satisfied simply because the witness' potential testimony does not accord with some prosecutor's view of the appropriate "camp" or some case theory which does not accord with all the otherwise reliable evidence. 55 There have been various views taken in the court as to the meaning of "unfavourable" in s.38 of the Evidence Act (see Regina v. Milat (Hunt, CJ. at CL., unreported 23 April 1996); Regina v. Lozano (CCA, unreported 10 June 1997); Regina v. Souleyman (1996) 40 NSWLR 712; Regina v. Pantoja (CCA, unreported 5 November 1998); Regina v. GAC (CCA, unreported 19 December 1996); Regina v. Adam & Adam (Wood, CJ. at CL., unreported 24 November 1998, 3 December 1998, 11 December 1998); on appeal Regina v. Adam & Adam (CCA, unreported 23 July 1999); Regina v. Patsalis & Spathis (No. 10) (Kirby, J., unreported 10 August 1999). Those views properly reflect the object of s.38 of the Evidence Act to provide a wider entitlement than s.53 of the 1898 Act, its predecessor. That provision dealt with the circumstance of a witness proving "adverse". However, the full width of any entitlement under s.38 and the criteria for the proper exercise of discretion to permit cross-examination remain to be settled. Other questions remain as to the appropriateness of calling witnesses known or expected to give unfavourable evidence and the eliciting or refraining from eliciting particular testimony against the interest of or not to the advantage of the party calling the witness. There is much about the application of the section still to be resolved. Interestingly, as a matter of history, the notion of unfavourability was considered by Willes, J. in Greenough v. Eccles (1859) 2 CB (NS) 786 at 805 in the context of the then newly enacted s.22 of the Common Law Procedure Act 1854, the ancestor of s.53. That decision became the seminal authority on similar statutory provisions throughout the common law world concerning the rights of a party who had called a witness that proved "adverse". Willes, J. rejected the concept of "adverse" under the section as merely amounting to "giving unfavourable evidence" and considered that "unfavourable" could be equated with giving "evidence opposed to the interests of the party who calls him". Such a test would not extend to failing to give evidence which might have been expected and which would have assisted the calling party's case and is narrower than those applied in some of the decisions to which I have referred. 56 Should there be a problem as to whether a witness, likely to give unfavourable evidence or to refrain from giving favourable evidence, should be called or as to how a witness, giving or refraining from giving such evidence, might be questioned, a ruling should be sought preferably in advance or alternatively, immediately.

Conclusions 57 In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with a theory of the accused's guilt. 58 In the way in which the complainant's evidence was given, the evidence of her mother was essential to the unfolding of the narrative and crucial on credibility (see Semeviratne v. The King (1936) 36 All ER 36 at 48-49). 59 Not calling the witness without having a principled basis for not so doing accorded ill with the traditional notion of the functions of a prosecutor for the Crown. (See the remarks of Fullagher, J. in Ziems v. Prothonotary (1957) 97 CLR 279 at 294.3.) 60 In the present case, no basis is put forward in evidence which would have entitled the Crown Prosecutor on the basis of unreliability to have formed the view that the witness should not properly be called in the Crown case. There was, for example, no evidence that the witness was unwilling to speak to the police; there was no attempt to conduct a conference with the witness and the witness' statements to the police concerning the physical assault may have been explicable on a basis other than being in the accused's "camp". 61 I am of the view that by reason of the failure to call the witness, occasioned, as it appears to be, by a failure to adopt an appropriate course to enable proper consideration of any question of unreliability, a miscarriage has occurred. In my view, the supplementary grounds of appeal should be upheld. It remains to consider whether, in all the circumstances, the appropriate order is for a new trial.

Order for a new trial 62 It was submitted in support of the "unsafe" ground that the evidence at trial was such as not to support the verdict. In the absence of the wife's evidence, it was necessary for the jury to evaluate the credibility of the complainant in the context of the directions that were given and the appellant's sworn evidence denying the offence. I have already referred to the jury's verdict on the other count. Taking that into consideration, and even having regard to the constellation of features drawn to our attention by counsel for the appellant including the discrepancies and inconsistencies asserted to affect the acceptability of the evidence of the complainant, I consider this is not such a case as Jones (supra). In that case, unlike here, the delay may have deprived the appellant of a "cast-iron" defence by way of alibi. Delay here either strikes at or supports the complainant's credibility depending upon a proper assessment of her reasons justifying her unwillingness to divulge the sexual aspect of the attacks. 63 The two counts at the trial related to qualitatively different conduct. Specifically, the count of an assault involving an act of indecency was supported by evidence that had a degree of equivocation with respect to the element of indecency that was not present in the evidence with respect to the second count. 64 Particularly in the context of her mother not having given evidence, it does not seem to me that I can conclude that the complainant's account so suffered from discrepancies and matters adversely affecting her credibility or that there was such an inconsistency arising by reason of her account not being accepted on the first count as to reflect so adversely upon her credit generally that a jury on her evidence was not entitled on the remaining count to be satisfied of the appellant's guilt. Here, the assessment of the credit of the differing witnesses is so important: Chidiac v. The Queen (1991) 171 CLR 432. 65 In so concluding I have had regard to what this court held in RJC (unreported 1 October 1998) and Dwyer (supra). 66 Further, when considering the application of the provisions of the Criminal Appeal Act 1912, and whether an acquittal should be entered (s.6(2)) or whether an order for a new trial would more adequately remedy the miscarriage (s.8(1)), I have had regard to the possibilities that complaint evidence might not be admitted at a subsequent trial; that more stringent directions might be given on such matters as the examination of the complainant's evidence; and the reliability of that evidence; and the matters already referred to in this judgment as to the appropriate directions as to complaint (if it is admitted): see Graham (supra) and s.108(3) of the Evidence Act, but I do not see that there are, on balance, discretionary considerations which would make an order for a new trial in all the circumstances inappropriate. On its face such an order would more adequately remedy a miscarriage arising by reason of relevant evidence not having been called. 67 Of course an order for a new trial is permissive. It will be a matter for the Director of Public Prosecutions, particularly in the context of the various matters that have been raised on this appeal, to give consideration as to whether the new trial should proceed. 68 SMART AJ: Michael Alfred John Kneebone sought an extension of time in which to appeal, and appeals against his conviction of on 24 February 1995 having sexual intercourse with his de facto stepdaughter without her consent in circumstances of aggravation, knowing that she was not consenting thereto. The circumstances of aggravation were that she was aged 14 and under an authority. 69 On 6 August 1999 orders were made extending the time, allowing the appeal, quashing the conviction and ordering a new trial with reasons to be given later. I now give reasons for joining in those orders. 70 The appellant was acquitted of a charge of indecently assaulting his stepdaughter (the complainant) between 19 December 1993 and 18 December 1994. Other evidence was led as to acts by the appellant towards the complainant in the nature of sexual advances and displays of passion. 71 The appellant complained that the trial judge erroneously admitted evidence and failed to give adequate directions on a number of issues, that the verdict was unsafe and unsatisfactory and that there had been a miscarriage of justice in the Crown failing to have the complainant's mother properly interviewed and a statement taken from her, and in failing to call her to give evidence at the trial. I agree with Greg James J that the verdict was not unsafe or unsatisfactory. 72 I also agree that there was a miscarriage of justice in the Crown's failure to investigate what the mother had to say. It is on this ground and the related ground of the Crown failing to call her as a witness on which I express my reasons. The facts of the case are so extraordinary and unique that acute factual and legal difficulties arose in the conduct of the trial. It is necessary to set out the facts in some detail to highlight the issues and the difficulties. 73 The parents of the complainant had separated and she had lived with her father. When she was aged about 13 and in year 8 at school she went to live with her mother and the appellant. The evidence suggests that she was no an easy girl to manage. On the afternoon of 24 February 1995 she returned home about 3.30 pm having wagged school for the day. Her mother and the appellant were there. He remarked that she was home early and that it usually took her twenty minutes to walk home and it had only taken her ten minutes. He told her to go to her room and do her homework. She went to her room and closed the door. She said that some time later he came to her room and told her to stand up, he wanted to talk to her. She did so. He then hit her across the face with the back of his hand causing her nose to bleed. He told her not to get blood on the carpet. He said "Come here, you lying slag". She went over to him. He hit her a couple more times and then pushed her up against the wall, put both his hands around her throat and started to squeeze. She said that she could not breathe, that he asked her if she could breathe, she shook her head and he said, "Feels good, doesn't it". After releasing his hold on her, he hit her again and threw her on the bed. She ended up lying on her back with her legs dangling over the edge of the bed. 74 She said that he commented "Oh, you seemed to enjoy that. See how you're going to enjoy this". He walked over and pulled her shorts off. She said that she screamed and tried kicking him. After a struggle by her the appellant succeeded in pulling off her underpants. He "sort of" threw her over to the side. She tried getting out of the open window. He grabbed her, pulled her back, threw her back on the bed and took his shorts off. She tried to escape through the window again but he pulled her back. He removed his underpants. She leapt from the bed and tried to get out through the door. He ran over, shut the door and threw her back on the bed and pinned her down. She screamed and yelled. He inserted his penis in her vagina and moved backwards and forwards. This hurt. 75 The complainant said that she next became aware of the bedroom door being opened and her mother standing in the doorway. Her mother said, "that's enough". The complainant said that she said nothing, that the appellant said nothing and that her mother walked away, leaving the door open. The complainant said that the appellant pushed in and out a couple more times, got off and walked out of the room leaving his clothing there. 76 She got up, put on some underpants and shorts and went to the bathroom. She wiped herself around the vagina and noticed some blood. As she endeavoured to leave the bathroom the appellant pushed her back into the bathroom and told her to wash her face. There was blood from her nose on her face. While she was in the bathroom attempting to wash her face, he pushed her and she fell into the bathtub striking the back of her head. After the appellant left the bathroom she got out of the bathtub and washed her face. She left the bathroom and went to her bedroom. 77 She said that the appellant came to her room and said, "You've got 10 minutes to get out of my house". Thereupon she began to pack some bags. While doing this her mother came in and asked her what had happened and she replied, "Like you don't know". Her mother did not reply but stood in the doorway. The daughter asked where the appellant was and her mother said he was in the toilet. The daughter grabbed her school bag but no other bag and ran out of the house. She was upset and scared. It was about 4:30 pm. It had been an eventful and traumatic hour. 78 The complainant ran on to the verandah of a hotel about five blocks away. A man came to her and asked, "can I help you", and she started to cry. The man spoke to the licensee of the hotel, a lady, who came out and spoke to the complainant. She was sobbing, shaking and distraught; indeed, so distraught that she did not want to enter the hotel. The licensee remembered this vividly. Because of the lapse of time (three years) the licensee could not remember accurately whether the complainant was bruised or had blood on her. The licensee arranged for the complainant to use the telephone. She telephoned Mr David Saillard. When she finished speaking the licensee gave her $5 for a taxi to Woolworths in Bathurst where she met a lady who drove her first to the lady's home and then to the Saillard home at Millthorpe, arriving there about 5:30 to 6:00 pm. 79 Mr Saillard was a highly qualified nurse and carefully observed the complainant's external injuries. Her face was bruised, her nose was discoloured and there was blood on her lip, across her jawline and on her clothes. It was dry blood. There was swelling to the side of her face and across her jaw and bruising to her ear. Around her neck and upper chest there were red finger marks. There were welts on the complainant's back and a fair sized lump at the back of her head. The lump was red and hot so it was not an old injury. Her face and her hair were "a real mess". Photographs of the injuries were taken. Mrs Saillard said that the complainant was very distressed and that the Saillards could not get any sense out of her for at least half an hour. 80 Mr Saillard took the complainant to the Millthorpe Police Station. The complainant said that she told Sergeant Anderson, a male officer, about some of what had occurred. She said "I just told him about the bashing". She did not tell him about the removal of her clothing or about the appellant placing his penis in her vagina. She stated that before she left the appellant's home he had said that if she told, he would hunt her down and kill her if he saw her on the street. Using excessive gestures he had also threatened to break her nose. As at 24 February 1995 the appellant was aged twenty-eight. He was unemployed at that point. At the trial he was a gardener by occupation. Sergeant Anderson said that at the time she made her statement (about 7:00 pm) the complainant was crying and physically shaking. She was then taken to Blayney District Hospital and examined by Dr Barui at 8:30 pm. He found that she had tender swelling over the right lower jaw, left cheek and back of her head. He did not find any finger marks on her neck or back. There were no marks of bleeding in the nose. There were no other abnormalities. 81 Mrs Saillard said that upon the complainant's return from the police and the hospital she was very withdrawn and would neither eat nor drink. She kept bursting out with certain statements which they did not take any further. It took hours to calm and settle her down. She slept on the floor in the bedroom of Mr and Mrs Saillard. She was not coherent - she was too upset. Mrs Saillard had to soak the complainant's clothes in an effort to eradicate the stains. 82 The complainant stayed with the Saillards moving with them to Queensland. Mrs Saillard said that for some time after 24 February 1995 the complainant was wary of men and getting close to them. 83 The appellant was interviewed by Sgt Anderson on Monday, 27 February 1995. He stated that he was sick and tired of the complainant running away when she could not get her own way. He said that he told her "to get the fuck out". He denied striking the complainant on the nose and that he held her against a wall causing her to have difficulty breathing. He said that he entered her bedroom when her mother and she were packing her stuff up. He said that the mother remained in the house from the time the complainant arrived home until the time she left. He denied that he struck her several times in the face. 84 The appellant said that he entered the bathroom while the complainant was in there. He believed that "she was getting her brush, hair ties and shit". He said that he asked her to move out of the way but she would not move. He said, "When I went off at her I think I scared her". He pulled the cabinet door open, knowing that it would strike the complainant if she did not move. After he had struck her with the door she fell into the bath. Her described his tone of voice as abrupt and said that his voice was raised when he told her to move and she did not do so. He said that he got a tin of spray paint and walked out the back to do "touchups" on the car. The appellant said that when he last spoke to the complainant in the house she had no injuries. However, she was upset. 85 In his evidence in chief the appellant conceded that he lost his temper with the complainant in the bathroom and that his actions in pulling open the cupboard door and striking her on the leg made her go backwards into the bath. Apart from this, he denied striking or touching her in any other way. He denied sexually assaulting her. 86 The appellant said that on the complainant's coming home he asked her how she had got home from school so early. She went into her bedroom to do her homework. He and her mother remained in the house. He opened her bedroom door and told her to leave her door open and to open the window "cause it stinks in here". He went back to the lounge room and conversed with his de facto wife. Next he was in the doorway of the complainant's room and a confrontation occurred over the way she left the room and over other matters. A little later, the bathroom incident occurred and he went out the back. 87 The appellant said that he came back inside the house five to ten minutes later. He saw his de facto wife and his de facto stepdaughter in the latter's bedroom packing her school bag and a couple of white Coles' bags. The appellant said he went into the toilet and on coming out saw his de facto stepdaughter and his de facto wife walking out the front door. The complainant left and her mother came back inside the house. The appellant said he had not seen the complainant again until the previous day (17 February 1998). The appellant's evidence in cross-examination was less than compelling. 88 The appellant was charged with assault occasioning actual bodily harm on 27 February 1995. He did not appear as required before the Court on 27 March 1995. He said he and his de facto wife went to South Australia. There were care proceedings in the Local Court at Orange involving the complainant and the Department of Community Services as a result of which the complainant was permitted to stay with the Saillards as their foster daughter. 89 As to complaint, Mrs Gina Waites, a daughter of Mrs Saillard, said that the complainant was not her normal self and that at her mother's suggestion, she spoke to the complainant and tried to ascertain what was wrong. Eventually, she told Mrs Waites that the appellant had laid on top of her and tried to put his penis in but could not get it in all the way. Mrs Waites told her mother. Mrs Waites believed the conversation took place about November 1995. Mrs Saillard said that, after Gina had reported the conversation to her, she spoke to the complainant who, after some general discussion about sexual assault and rape, told Mrs Saillard that the appellant had raped her as well as bashing her. Mrs Saillard, who thought that the conversation had occurred at the end of 1996, reported the matter to Community Services. In January 1997 the police took a statement from the complainant and a medical examination of her took place on 12 February 1997. Assuming that the complaint was made in late 1996 that was about twenty-one months after the event. 90 It is against this background that the questions of not interviewing and calling the complainant's mother and the appellant's de facto have to be considered. The appellant's evidence did not satisfactorily explain all of the complainant's injuries so tellingly detailed by Mrs Saillard. At best, it provided some explanation for the bruise on the back of her head. The sexual assault alleged was sandwiched in between the two other assaults, that is, the one in the bedroom and the one in the bathroom. It is hard to regard it as other than one continuous incident. It is also difficult to imagine the complainant being in the condition recounted by the hotel licensee if she had only fallen backwards into the bath and had been ordered out. Her condition was most consistent with an attack of the severity described by her. The appellant was in the unenviable position that a jury was not likely to accept his evidence about the assault not involving the sexual component. 91 The appellant was also in considerable difficulty calling his de facto wife. Even allowing for the complainant being difficult to handle, the mother had let her daughter leave the home in the condition she was subsequently found by Mrs Saillard. If the mother said that the daughter was not in that condition when she left home, that would not be easy to accept. There is the further question as to how the complainant got into the condition. The mother's credit would not be assisted by her subsequent conduct including leaving for South Australia with her de facto husband without her daughter and Community Services having to intervene. In effect, the mother surrendered her daughter into the care of the Saillard family. Put briefly, the probable serious inroads into the mother's credit, standing and care of her daughter in cross-examination could have done irreparable harm to the appellant's case. In practical terms, the appellant could not run the risk of calling her even though she would have supported his version. There was the real risk that she would have been seen as supporting him and abandoning her daughter. Yet, she was the only eye witness apart from her daughter and her de facto husband. 92 The mother said in her affidavit that she had given a statement to the police on 27 February 1995 in which she stated that she did not see the assault allegedly committed on her daughter. She stated that she gave the police an outline of what she saw happen but did not tell them she had been told about her daughter and the appellant being in the bathroom together. 93 The mother stated in her affidavit in these proceedings:

(a) She was present during an argument between her, the appellant and her daughter about wagging school and the cleanliness of her room on the afternoon of 24 February 1995.

(b) Her daughter expressed the wish to leave home and stay with a friend at Millthorpe (near Orange).

(c) Before her daughter left home, she appeared to be walking alright. The mother did not see any injuries upon her daughter.

(d) She did not see her daughter fall into the bath although she had been told by the appellant that he had opened a cupboard, hit her on the leg and caused her to fall into the bath.

(e) She never saw the appellant having a sexual relationship with her daughter. She did not go into her daughter's room and see her with the appellant and say, "what's going on" or, "that's enough".

(f) She never had a conversation with her daughter that afternoon where she said, "what's wrong", and her daughter replied, "as if you didn't know". 94 The mother said that about a week before the trial a police officer telephoned and asked if she had received a subpoena to attend court. She replied, "no". The police officer said that he would look into the matter as she was on the list of witnesses. The mother said that she attended at the trial to give evidence on behalf of the prosecution. She sat outside the courtroom all through the trial. No one from the prosecution ever spoke to her or approached her. 95 She was never called as a witness at the trial. The prosecution did not tell her that she was not to be called and she was not aware of the reasons why she was not called by the defence. Neither side asked her what she knew. During the trial she was told by the appellant that her daughter claimed that she had seen the daughter and appellant having sex. After the verdict of guilty, she spoke to her de facto husband's barrister and stated that she wanted the Court to know her version of events. 96 She was called to give evidence at the sentence hearing on behalf of the appellant with whom she had been living for about seven and a half years. She said that the complainant caused normal teenage difficulties such as skipping school, shoplifting, wanting to go out at night and lying about what she was doing. The complainant and the appellant had a reasonably good relationship. They went to South Australia to be with members of his family. She described his personal conduct which was good and kindly. After counsel had finished leading her evidence, the judge asked her some questions. In reply, she stated that she heard the appellant telling the complainant something like "if you want to go, go". The mother said that she did not intervene but she did speak with her daughter and she wanted to go and stay with her friend, Anna Saillard. She denied that she had seen her daughter being raped by the appellant and her daughter's version of events. 97 The appellant's solicitor at the trial has stated that, when the trial commenced, the Crown indicated that the mother might be called to give evidence. He believed that she was on a list of witnesses. At the end of the first day of the trial, the Crown prosecutor visited the defence room and asked whether the defendant intended to call the mother to give evidence. Either counsel or the solicitor for the appellant pointed out that her statement formed part of the brief upon which he had been committed for trial. The next morning, before the trial continued, the Crown prosecutor attended and advised that he probably would not call the mother as her evidence would be unreliable. He was not asked on what basis he had formed that opinion. The appellant's solicitor has stated that, in preparation for the trial, discussions with the appellant proceeded on the basis that the Crown would be calling the mother as a witness. For that reason, she was not interviewed. As there is no property in a witness, there was no sufficient reason not to interview the mother although the appellant's solicitor would have had to be careful just to elicit her account of what had occurred, where she was in and about the house between the time the complainant went to her room and the time she left the house, and the physical condition of the complainant. 98 The appellant's solicitor said that after the discussions with the Crown it was decided not to call the mother in the defence case. The reasons for this decision are obvious. 99 There was a significant departure from proper practice in the Crown not interviewing and not attempting to interview the mother after the allegation of rape had been made in late 1996. It was not a matter to which attention was directed on 27 February 1995 when she was being interviewed about the assaults as it was not known to arise. The Crown knew that the mother was in the house. Any moderately competent investigation required that the mother be interviewed and asked about what had happened. 100 From what is know of the mother's evidence, it does raise acute problems. She admits that she did not tell the police when being interviewed on 27 February 1995 about the appellant and her daughter being in the bathroom although the appellant had told her about that. She claims that she did not see any injuries on the complainant before she left home and that the complainant appeared to be talking and walking alright. According to the appellant, the mother helped the daughter pack and saw her off the premises. The difficulty is that if her statements about the assault and the condition of her daughter are unreliable, as they appear to be, and she did not tell the police of the bathroom incident, how much weight, if any, can be given to her denial of witnessing one segment of the assault, namely the alleged sexual assault which occurred between the other assaults. 101 The principles relating to the calling or non calling of witnesses by the Crown have been authoritatively restated by the High Court in The Queen v Apostilides (1983-84) 154 CLR 563 at 575. As the Court noted, it did not attempt to deal exhaustively with the responsibility of the prosecutor and it referred back to the Court's earlier decisions. The difficulty in the present case lies not so much in the statement of the principles but in their application. 102 At the risk of undue repetition these further principles should be noted:

(a) The Crown prosecutor in deciding how the Crown case will be presented and what oral evidence will be adduced has the responsibility of ensuring that the Crown case is presented with fairness to the accused: Richardson v The Queen (1974-75) 131 CLR at 199.

(b) The Crown prosecutor will often have to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether it is credible and truthful, whether in the interests of justice it should be subject to cross-examination, amongst other matters: Richardson at 119.

(c) The prosecutor should decide in the particular case what are the relevant factors and in the light of those factors determine the course which will ensure a proper presentation of the Crown case comformably with the dictates of fairness to the accused: Richardson at 119.

(d) To avoid a miscarriage of justice, a Crown prosecutor should call all available material witnesses. They include those whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case: Whitehorn v The Queen 152 CLR 657 at 674 per Dawson J. (An exception exists where there are many witnesses to prove the same point.)

(e) However, the Crown has a discretion not to call in the Crown case an eye witness if the prosecutor judges that there is sufficient reason for not calling the witness, as, for example, where the prosecutor concludes the witness is not reliable and trustworthy or is otherwise incapable of belief. This applies even to a witness who is essential to the unfolding of the narrative on which the prosecution is based: Richardson at 121 and Whitehorn at 674.

(f) The prosecutor's judgment must be based on more than a feeling or intuition. There must be identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness. It is not enough that the prosecutor considers that the evidence may be unreliable. Suspicion, scepticism and errors on subsidiary matters will not suffice. The attention of the prosecutor should be on matters of substance and even on these there may be significant differences between the witnesses. It is for the jury to resolve these: Apostilides at 576.

(g) "In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment" [or able to give material evidence] but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defendant and then, if necessary, be re-examined: Apostilides at 576.

(h) Frequently, eye witnesses will be close or have been close to the accused and possibly to the victim. That does not mean that they should not be called by the Crown. It is where it is apparent that the eye witness is so devoted to the accused and his cause that she will not tell the truth as to what happened that the question of the Crown not calling that witness will arise.

(i) Overriding all the particular guidelines and formulations is the general obligation imposed upon a Crown prosecutor to act fairly in the discharge of the function which he performs. That is the guiding and fundamental principle to be kept in mind as new and unusual situations emerge: Whitehorn at 675. 103 I have considerable doubt whether the mother is necessary to unfold the narrative and give a complete account of the events upon which the prosecution rely. On the complainant's evidence, the mother was an observer for a short period and uttered the words, "that's enough". The alleged rape commenced before she came to the door of the bedroom and continued after she left. It was the complainant who attributed the role mentioned to the mother. The mother denies acting as an observer or being aware of the activities of the appellant alleged by the complainant and for that reason her evidence, if true (or if there is a possibility that it is true), is important. 104 One consideration is whether in the interests of justice the mother's evidence should be subject to cross-examination (Richardson at 119). Given the unsatisfactory features of her evidence as to other parts of the incident, it is difficult to see how that question can be answered other than in the affirmative. Section 38 of the Evidence Act 1995 then needs to be considered as it allows a party, who called witness, with the leave of the Court, to question a witness as though cross-examining her about evidence given that is unfavourable to the party. Under s38(4) such questioning is to take place before the other parties cross-examine the witness unless the Court otherwise directs. Section 38 makes an important change in the law and removes restrictions which had the effect, on occasions, of making important evidence unavailable and preventing the adequate testing of evidence. The judge has the task of deciding whether the evidence is unfavourable (not favourable) and then whether in the exercise of his discretion he ought to grant leave to cross-examine. The careful exercise of that discretion is designed to ensure that there will be no unfairness. The prosecutor will need to bear this section in mind and also the appellant's desire that the Crown call the mother. The Crown prosecutor would have to consider the alternative course of simply calling the mother and allowing the mother to be cross-examined by the appellant. He could still do this if leave to cross-examine were refused. 105 On the material available to this Court, and it is at best doubtful if there will be further significant material, it is hard to avoid the conclusion that there will probably be a miscarriage of justice if the Crown does not call the mother. In practical terms the appellant cannot call her. In fairness she should be called despite the reservations about the evidence. The offence charged is particularly serious and the appellant received a long term of penal servitude (nine years with a minimum term of six years). Apart from the appellant and the complainant, she was the only other person in the house at the critical time. It was the complainant who said that the mother observed the rape and made the comment mentioned. Thus, the complainant rendered the mother's evidence in denial of importance to the appellant. 106 The circumstances taken as a whole are somewhat strange. I have assumed that any statement which the mother gives to the police will, in substance, accord with her affidavit in these proceedings. I have deliberately refrained from expressing any final view as there is a possibility that other material of some importance may emerge once the mother is interviewed in some depth and other witnesses are, perhaps, further interviewed or further investigations occur. I do not regard this as likely and I have expressed some provisional views. The Crown took the course of conceding that the mother was a material witness who had not been interviewed about the sexual assault allegations and that there had been no adequate investigation. That sufficed and there was no point in the Crown adducing evidence. The failure mentioned and conceded meant, in the circumstances, that any decision not to call the mother to give evidence could not be soundly based. The whole matter will need to be reconsidered once an adequate investigation has occurred. 107 The task confronting the prosecutor is a formidable and lonely one. There are a number of courses of action available. In Apostilides the High Court pointed out that the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Despite the problems with some of her evidence and the reservations about it, this appears to be such a case. Pre-eminently, this is a case where the jury should assess the complainant, the appellant and the mother. Without the mother, the jury may be left with unanswered questions of consequence. The prosecutor will have to address not only the question of whether the mother's evidence would be unreliable but the further question of whether there would, in the special circumstances, be a miscarriage of justice if she were not called. * * * * * * * * *

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.