Regina v Slattery

Regina v Slattery - [2002] NSWCCA 367 - NSWCCA 2002 case summary — Zoe

[86]

That passage does not emphasise the real disadvantages which the appellant suffered. 82. At SU 59 the judge said: "The defence says well it's a pity this weapon is not here we're at a disadvantage over that but the disadvantage if there is one affects the ability of the Crown to convince you beyond reasonable doubt of these matters pertaining to the firearm." That passage significantly understates the substantial disadvantages faced by the appellant. The words "but the disadvantage if there is one" and especially "if there is one" do not accurately reflect the true situation. The reference to the effect on the Crown was not to the point. 83. Counsel for the appellant at the trial objected to the admission of the ballistics evidence of Sgt Constable principally on the ground of the absence of the shortened Stirling rifle because of its destruction. Objection was also taken to Sgt Constable giving evidence that the rifle was not operating in a semi-automatic fashion. This matter was not included in his report of January 1992. The appellant contended that he could not adequately meet this evidence. The judge admitted the evidence. His ruling obviously covered the evidence of Sgt Roach. 84. In the closing speech of the Crown Prosecutor to the jury he referred to counsel for the appellant having applied good dramatic effect to the question "Where is the gun." The Crown Prosecutor referred to the rifle having been produced at the committal proceedings in 1992 and the earlier Special Hearing in the District Court in 1995. That did not assist in the present case. It was not suggested that either of those hearings involved a full investigation of the ballistics evidence. A Special Hearing occurs when an accused is not fit to stand trial. The Crown Prosecutor urged the jury to stick to the evidence they had and not to speculate. The Crown Prosecutor suggested that the appellant had cocked the weapon for a second time. In dealing with Mr Barber's evidence the Crown Prosecutor acknowledged that Mr Barber was at a disadvantage in saying what exactly had happened at the scene of the crime with the rifle because he did not examine the gun. The Crown Prosecutor continued: "But we know that two experts did examine the gun and came to the conclusion that the most likely reason for the blow back system not operating properly as they said was because of a combination of the shortened barrel on the rifle together with the fact that there was damage to the face of the breech of the gun." 85. The Court does not have a transcript of the lengthy closing speech of counsel for the appellant to the jury so it does not know exactly what he said about it. The summing-up contains but brief references to the matter. They have been quoted.

[87]

The appellant relied on the decisions of the High Court in Longman v The Queen (1989) 168 CLR 7 and Crampton v The Queen (2000) 75 ALJR 133 and submitted that what was required was a direction similar to the one given in those cases but suitably adapted to the circumstances of the present case. It was submitted that the judge should have instructed the jury: (i) The disadvantage was real and not speculative (ii) The disadvantage was heightened by the Crown relying on persuasive expert ballistics evidence which could not be tested by reference to the firearm or otherwise met or rebutted by the appellant. (iii) The disadvantage was one over which the appellant had no control and no ability to stop; it was forced upon him (iv) It would be dangerous to convict the accused when such evidence formed a significant part of the Crown case and could not be adequately tested without at least scrutinising that evidence with great care. It was submitted that such a direction should have been given with the "unmistakable and firm voice" of the trial judge. On any view the suggested directions would need to be revised.
Longman and Crampton were both cases of sexual assault where the trial took place either over or about 20 years after the alleged offences occurred. In Longman the joint judgment of Brennan, Dawson and Toohey at 90 stated: "There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge." and at 91 continued (citations omitted) "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, in scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."
In Longman at 95-96 Deane J spoke of the trial judge's responsibility of giving the jury appropriate directions to assist them in the performance of their function as the judges of fact. He continued: "That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury."
In Crampton at 141 Gaudron, Gummow and Callinan JJ stated: "The trial judge should have instructed the jury that the appellant was, by reason of very great delay unable adequately to test and meet the evidence of the complainant ... The denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions."
It was pointed out in Longman at 86 that "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". It is this general principle upon which the appellant relies.

[90]

A warning was required but the circumstances dictated that it be along these lines, bearing in mind the other evidence in this case, namely: The Crown has relied on the expert ballistics evidence of Sgts Constable and Roach. They have expressed the view that in January 1992 the Model 20 Stirling shortened rifle was not functioning as a semi-automatic weapon but as a handgun, that it required manual reloading upon a shot being fired or discharged and a trigger pressure of at least 4 pounds 2 ounces before it would fire and was therefore unlikely to discharge accidentally. Those views were based on their examination and testing of the weapon. The weapon was destroyed some time after August 1995. Accordingly, the appellant's expert witness, a person of considerable experience, has not had the opportunity to examine and test the weapon nor have that witness, the appellant and the appellant's counsel had the opportunity to demonstrate before you how that weapon may have discharged and reloaded and functioned as a semi-automatic weapon. These are severe disadvantages. It is important in the interests of a fair trial that an accused have the opportunity to examine and test the weapon. In the present case by reason of the destruction of the weapon the accused is unable to adequately test and meet the evidence of the Crown's ballistics experts. If the accused's expert had had the opportunity to do so, he may have been able to show you that the weapon was or may have been capable of functioning as a semi-automatic weapon and that it could discharge accidentally quite readily.. We do not know. The opportunity to cross-examine the Crown's ballistics experts is no substitute for independent examination and testing of the weapon by an experienced ballistics expert. Further, such an examination and testing may have provided the appellant's counsel material with which to cross-examine the Crown's ballistics experts. This was of particular value in the present case as the initial ballistics report made no mention of the rifle not operating as a semi-automatic one. Such cross-examination could cast doubt on the critical parts of the evidence of Sgts Constable and Roach. We do not know if this would have happened. With the destruction of the weapon you are dependent on what the Crown ballistics experts say as to the weapon and that is untested in any meaningful way. Accordingly it would be dangerous to convict the accused relying on the ballistics evidence of Sgts Constable and Roach unless you, in scrutinising that evidence with great care considering the circumstances and paying heed to the warning including that that ballistics evidence cannot be properly tested on behalf of the accused and the disadvantages earlier mentioned, were satisfied of the truth and accuracy of the ballistics evidence of those officers.
I do not think that the matters to which I have referred and their significance would occur to the jury in the absence of a warning along the lines indicated. They were matters which required a warning, especially as the ballistics evidence led by the Crown was capable of being regarded as cogent.

[105]

The Court was referred to Buckland (1977) 2 NSWLR 452 at 459 where Street CJ said: "In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing up."
Reliance was also placed on this passage in the judgment of Sperling J (with whom Spigelman CJ and Carruthers J agreed) in R v Mohamed Zreika [2001] NSWCCA 57. "20. In such a case as this, if the direction is to be given, the jury would have to be warned, without necessarily being over-specific, that there may be an explanation that has not been disclosed because the accused has reasons for not disclosing it. That is even more so where the absent witnesses are members of the accused's family. One cannot know what under-currents might have come to bear on a decision not to require relatives to testify in such circumstances."
In R v Scott [2000] NSWCCA 187, James J stated: "35. The so-called 'Jones v Dunkel' direction, on an analysis is often of little assistance in criminal trials and in any event, when such a direction is applied to an accused in a case in which the Crown bears the onus, is likely to undermine that onus. In a succession of cases, including The Queen v Buckland (1977) 2 NSWLR 452; Regina v Newland (1997-98) 98 A Crim R 455); OGD (1997) 45 NSWLR 744 at 753 and Regina v Taufua [1999] NSWCCA 205, although the Court of Criminal Appeal had recognised that in an appropriate case such a direction might be given, emphasis had been placed on the caution with which the giving of such a direction should be approached and of the necessity for precision and care in the direction itself when it is given."
The Crown submitted that the judge's repetition of the appellant's explanations for not calling the witnesses and the evidence for example, that the appellant and his wife had been estranged prior to March 1991 would have had the effect of neutralising the Jones v Dunkel directions. I doubt if this is so.

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Judgment (115 paragraphs)

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Cases Cited (7)