Richardson v The Queen

The relevant facts may be shortly stated. The victim of the assault, Constable Baillie, was travelling home from work by car shortly before midnight on the night of 25th November. He was overtaken by a car driven by one Ryan, in which a girl named Dawn Gardiner and another male were travelling as passengers. Ryan's car proceeded to cut in sharply in front of Baillie's vehicle. It seems that Ryan's car did this on more than one occasion with the intention of annoying and irritating Baillie. Understandably Baillie decided to follow Ryan's car and obtain its registration number. However, unknown to Baillie, another car containing associates of Ryan was following him. Ryan's car pulled up in a parking area in Canberra City. Baillie's vehicle and the third vehicle also pulled up in the car park. Ryan jumped out of his car, went over to Baillie's vehicle and through the driver's window punched Baillie so severely that he was knocked over to the other side of the car. He was then pulled out of the car and set upon by a number of youths who had been travelling in the two cars. He was severely punched and kicked and left in a dazed condition. On the evidence it was open to the jury to conclude that each of the applicants participated in the assault or was a party to a common purpose having that end in view.

As the applicants are out of time their applications are for special leave to appeal. Dickinson's application relates to his conviction and sentence for assault; the applications of Morrison and Richardson relate to the sentence imposed for assault.

Ryan pleaded guilty to a charge of common assault. His plea was accepted in discharge of the indictment which also contained a count for assault occasioning actual bodily harm. He was sentenced to two years' imprisonment, the maximum penalty prescribed for the offence to which he pleaded guilty. A fifth accused, Colin Dickinson, a brother of the applicant Dickinson, was acquitted of the three charges, that is, assault occasioning actual bodily harm, common assault and malicious injury to property.

One ground only was argued in respect of the appeal against conviction. It was submitted that the Crown prosecutor had failed in his duty to call a material witness, Dawn Gardiner, that this failure had led to her being called as a witness for the defence, with the consequence that she had been exposed to cross-examination by the Crown and that her evidence was less likely to be persuasive with the jury because it was associated with the presentation of the defence case, thereby placing the accused Keith Dickinson at a disadvantage to which he would not have been subject had she given her evidence in the course of the Crown case.

As we have already said, Miss Gardiner was a passenger in the car driven by Ryan. She did not leave the car during the course of the assault on Baillie. However, she had some view of what occurred. Her evidence exculpated Colin Dickinson and provided some support for an argument that Keith Dickinson did not participate in the assault. She had been called as a witness by the Crown in the committal proceedings at the invitation of the magistrate. The magistrate commented that she "was not a very convincing witness. There was much she claimed not to have seen and her demeanour in the witness box was such that it seems to me that a very real issue arises as to her credibility "

It seems that the Crown prosecutor decided not to call her as a witness at the trial because he considered her not to be a credible or truthful witness. The evidence of Constable Baillie indicated that she had encouraged the accused to "get" him for the reason that he had the registration number of Ryan's car. Miss Gardiner attended the trial pursuant to a subpoena served upon her by the Crown. The accused's legal representatives were informed that she would not be called as a Crown witness, although she would be available to be called for the defence. She was called as a witness on behalf of Colin Dickinson and was cross-examined by the Crown prosecutor.

In the course of the Crown case counsel for Colin Dickinson submitted that the Crown prosecutor should call Miss Gardiner as his witness. The trial judge refused to give any direction to the prosecutor.

The case for the applicant Dickinson rests on two submissions: (a) that the Crown is under a duty to call as its witness any person who can testify to the circumstances giving rise to the offence charged, that is, an eye-witness, whether his testimony tends to inculpate or exculpate the accused; and (b) that once a breach of this duty is established the accused, if convicted, is entitled to a new trial.

Neither submission is in our view an accurate statement of the law.

Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case 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 the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word "discretion" signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.

It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The misconception has arisen, we venture to think, from treating some observations in the decided cases, which have been made with the intention of offering guidance to prosecutors in how they are to approach their task, as the prescription of an inflexible duty to call all material witnesses, subject to certain exceptions or to special circumstances. Although the pursuit of certainty may have its advantages, the rigid circumscription of a practical decision to be made by the Crown prosecutor in the conduct of the Crown case is not to be numbered among them.

It seems to us that there has been a tendency to overlook what was said by the Judicial Committee in Adel Muhammed el Dabbah v Attorney-General (Palestine) [1] , where there is to be found an accurate and comprehensive statement of the function of the Crown prosecutor. It is unnecessary to reiterate all that was then said upon the topic, including the citation of the illuminating observations of Alderson B. in Reg. v Woodhead [2] and Parke B. in Reg. v Cassidy [3] . But it is important to recall that their Lordships, after observing [4] :

the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive said [5] : It is consistent with the discretion of counsel for the prosecutor, which is thus recognized, that it should be a general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender such witnesses for cross-examination by the defence, and this practice has probably become even more general in recent years, and rightly so, but it remains a matter for the discretion of the prosecutor. Archbold, 31st ed., p. 1943, contains a list of a series of decisions, but in none of these has the court superseded the prosecutor's discretion. 1. [1944] A.C. 156, at pp. 167-169. 2. (1847) 2 Car. & Kir. 520 [ 175 E.R. 216]. 3. (1858) 1 F. & F. 79 [175 E.R. 634]. 4. [1944] A.C., at p. 168. 5. [1944] A.C., at p. 169.

Their Lordships went on to refer to the observation made in argument by Lord Hewart C.J. in R. v Harris [6] that "in criminal cases the prosecution is bound to call all the material witnesses before the court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury" and said that [5] "the learned chief justice could not have intended to negative the long-established right of the prosecutor to exercise his discretion to determine who the material witnesses are".

1. [1927] 2 K.B. 587, at p. 590. 2. [1944] A.C., at p. 169.

The remarks of Fullagar J. in Ziems v Prothonotary of the Supreme Court of N.S.W. [7] are entirely consistent with what was said by the Privy Council. When his Honour's judgment is read in its entirety it dispels any notion that there is a rule of law which requires the Crown prosecutor to call particular witnesses or that his Honour was seeking to enunciate rules which would fetter the prosecutor's discretion. His Honour was of course concerned to state, and state emphatically, how the prosecutor should approach his task, and in so doing quoted the statement made by Lord Roche in Seneviratne v The King [8] , "Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution". With this statement we would agree, but so as to avoid any misapprehension we would wish to make two observations about it. First, it should be understood in the sense that it proffer%21s advice to the prosecutor as to how he should approach his task and not as a rule of law formulating a duty owed by the prosecutor to the accused. Secondly, there is room for some debate as to what is meant by the opening words of the statement and it should not be read as inhibiting the discretion which the prosecutor has not to call in the Crown case an eye-witness if he judges that there is sufficient reason for not calling him, as, for example, where he concludes that the witness is not a credible and truthful witness. In this event the prosecutor will ensure that the accused is given the opportunity to call the witness.

1. (1957) 97 C.L.R. 279, at pp. 292-294. 2. [1936] 3 All E.R. 36, at p. 49.

It follows that a failure on the part of the Crown prosecutor to call in the Crown case an eye-witness of the incidents giving rise to the offence charged does not of itself constitute a ground for setting aside a conviction and ordering a new trial. Counsel for the applicant was unable to point to any authority for the proposition for which he contended and, in the light of what we have said, it finds no support in principle or in the nature and character of the decision which the prosecutor is called upon to make. Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice. This, indeed, is how the matter was approached in Ziems' Case [9] by Fullagar J., whose opinion was that the conduct of the prosecutor in seeking to secure an unfair tactical advantage by not calling Sergeant Phillis as a witness, accompanied by what, as his Honour thought, was a grave misdirection in the charge to the jury, deprived the conviction of practical significance.

In the present case there is no basis on which it could be held that the Crown prosecutor was guilty of misconduct or that any misconduct on his part gave rise to a miscarriage of justice. Miss Gardiner's evidence before the magistrate seems to have been unsatisfactory and to have justified the conclusion, if justification be needed, that she was not a credible or reliable witness. Moreover, she was an associate of the accused, in particular of Colin Dickinson, and there was evidence from the principal Crown witness that she encouraged the accused in their vicious and unprovoked assault. No dictate of fairness to the accused could properly require that she be called as a Crown witness, free from cross-examination by the Crown. Proper presentation of the Crown case required that she be called, if at all, by the defence. There was therefore no basis for any criticism of the Crown prosecutor.

In argument it was submitted that the trial judge had power to direct the Crown prosecutor to call a witness or that he had power to call a witness of his own motion (see Reg. v Lawson [10] ). For the disposition of this application it is unnecessary to decide whether a trial judge possesses either of the suggested powers. It is sufficient to say that we remain to be persuaded of the correctness of the submission. It does not seem to accord with the adversary procedure which has hitherto been followed. If the power should be held to exist, the occasions for its exercise should be rare and infrequent, because all too often the trial judge lacks that knowledge and information about the witness, his relationship to the parties and to the evidence to be presented which is essential to the making of a decision whether the witness should be called in the Crown case. The trial judge should be astute to acknowledge the nature of the discretion which is reposed in the prosecutor and the limitations attaching to his judicial knowledge of material circumstances.

Little need be said on the question of penalty. We can see no reason whatsoever for thinking that the penalties imposed on the three applicants were excessive. The submission that they should be judged by reference to the standard established by the penalty imposed on Ryan (which in our view was extremely lenient) is entirely misconceived. Each applicant was convicted of participating in a vicious and unprovoked assault on a police officer in the execution of his duty. Four years' imprisonment is a penalty appropriate to that offence.

Before leaving this case we should draw attention to one matter which is not unimportant. The trial took no less than eleven days. Its length was out of all proportion to the nature and difficulty of the issues which should properly have arisen for determination. It needs to be stated clearly and explicitly that counsel have a responsibility to the court not to use public time in the pursuit of submissions which are really unarguable.

In the result we would grant the applications for special leave to appeal and dismiss the appeals.