Whitehorn v The Queen

High Court of Australia|1983-07-01|Before: Dawson JJ, Brennan J, Dixon J, Murphy J

The applicant was convicted in the Central District Criminal Court of South Australia of the offence of indecent assault (Criminal Law Consolidation Act 1935 SA, s. 56). The alleged victim was his wife's niece who was, at the time the assault was said to have occurred, staying with the applicant and his wife in their Smithfield (S.A.) home. The niece was seven years old at the time; she had turned eight by the time of the trial. It was alleged against the applicant that, while alone with the child in the lounge room of the house, he had placed his finger in her vagina and held it there for a short time.

There was no direct evidence before the jury that the applicant had committed the alleged assault. Although the child's name was included among the "witnesses" listed on the back of the indictment, she was not called to give evidence. The only proffered explanation of the Crown's failure to call her was that given by prosecuting counsel to the trial judge, in the absence of the jury, in response to a submission by the applicant's counsel that it was unfair to his client to have "the case conducted in that way". That explanation - if it can properly be so described - was that "having proofed the child witness I am not satisfied she would be any use as a witness" and that "the decision was made that she would not have been capable of giving evidence". The Solicitor-General for South Australia, who appeared for the Crown on the appeal, was unable to indicate whether that proffered explanation was intended to convey that the child would be incoherent as a witness or that she no longer claimed to have any memory of the alleged incident or that she would, if pressed, disown any allegation against the applicant. In the absence of the child's evidence, the case against the applicant was based on admissions which he was said to have made while being questioned by a Detective Jenkins at the Police Station in Elizabeth. The evidence of those admissions consisted of Detective Jenkins' oral evidence and a written record of interview which had been signed by the applicant on each of its six pages.

The applicant gave sworn evidence that he had not assaulted the child and that he had not made the admissions of guilt which he was alleged to have made. According to him, the written record of interview containing those admissions had been concocted by Detective Jenkins and had been signed by the applicant only to bring his interrogation at the police station, which had lasted for about four hours, to an end.

The primary argument propounded on behalf of the applicant was to the effect that, when it appeared that the Crown did not propose to call the eight-year-old girl as a witness, the trial judge should either have directed prosecuting counsel to call her or have called her himself. As Mitchell J. pointed out in the Court of Criminal Appeal, the simple answer to that submission is that no request was made of the trial judge that he give such a direction or pursue such a course. It is unnecessary to determine whether, if he had been asked by counsel for the applicant to do so and had considered it to be necessary to procure a fair trial for the applicant, the trial judge would have been entitled to call the child himself (see the discussion of the question in the judgment of Street C.J. in Reg. v. Damic [4] and in the article by Mr. Justice Sheppard, Court Witnesses - A Desirable or Undesirable Encroachment on the Adversary System?, Australian Law Journal, vol. 56 (1982), p. 234). Plainly, he had no power to make a binding order that she be called by the Crown (see, e.g., Richardson v. The Queen [5] ; Reg. v. Evans [6] ). The question remains, however, whether the failure by the Crown either to call the child or to proffer any satisfactory explanation of the failure to call her had the result, in the circumstances of the present case, that the applicant was denied a fair trial.

[1982] 2 N.S.W.L.R. 750. 2. (1974) 131 C.L.R. 116, at pp. 119, 121. 3. [1964] V.R. 717, at p. 719ff.

Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will 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. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer [7] ). If there be exceptions to that general proposition, they do not presently occur to me.

The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. All available witnesses whose names appear on the back of the indictment or information or who were called by the Crown to give evidence on any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justify the Crown in refraining from leading evidence from such a witness, either be sworn by the Crown to enable cross-examination by the accused or, at the least, be made available to be called by the accused. Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable. If the Crown proposes to refrain from calling as a witness a person whose name appears on the back of the indictment or information or whom it would otherwise be expected to call as a matter of course, it should communicate that fact to the accused or his lawyer a reasonable time before the commencement of the trial. If the accused seeks to be told why the Crown is refraining from calling such a witness, fairness to the accused would ordinarily require that the Crown communicate the reason or reasons.

The fact that criminal proceedings in this country are adversary in character means that what is required by the standards of fairness and detachment which should be observed by the Crown in the calling of witnesses may be modified by the informed consent of the accused. The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of a trial judge, particularly in summing up to the jury or in dealing with an application for an adjournment or for discharge of the jury, to seek to ensure that an accused receives a fair trial and the powers of an appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial. The question whether a trial judge may withdraw a case from the jury or direct an acquittal on the ground that, notwithstanding that there is evidence which would sustain a conviction, a failure by the Crown to call a particular witness has resulted in a situation where a conviction would be unsafe or unreasonable, has not been argued and need not be considered here (cf. Reg. v. Prasad [8] ; Reg. v. Galbraith [9] ; and the decision of the Victorian Court of Criminal Appeal in Attorney-General's Reference No. 1 of 1983 [10] ).

(1979) 23 S.A.S.R. 161, at pp. 162-163, 170-172, 175-177. 2. [1981] 1 W.L.R. 1039, at pp. 1041-1042; [1981] 2 All E.R. 1060, at pp. 1061-1062. 3. [1983] 2 V.R. 410.

It is not suggested in the present case that the Crown was influenced by tactical or other improper considerations in refraining from calling the little girl as a witness. While it would seem that the Crown failed to inform the applicant until immediately before the commencement of the trial that the child would not be called by the prosecution and that the Crown failed to take steps to ensure that the child was available to be called by the applicant, any default in those regards could not, in the absence of suggestion of specific detriment or of a desire on the applicant's part to call the child as a witness, warrant a conclusion that the applicant was thereby denied a fair trial. The strength of the applicant's case that he was denied a fair trial does not, however, lie in the superficial identification of the ordinary dictates of fairness to an accused in a case where the Crown decides not to call a witness whose name appears on the back of the indictment. Consideration of the question whether the applicant was denied a fair trial in the present case requires a more detailed consideration of the importance of the child as a witness, of the absence of a satisfactory explanation for not calling her and of the presentation by the Crown of the prosecution case against the applicant.

Any evidence which the child could have given would obviously have been of critical importance. She was both the victim of the alleged offence and the only suggested eye-witness of its occurrence. The effect of her not being called as a witness was inevitably that the applicant's trial would be converted into a dispute about the genuineness and reliability of the confession which he was alleged to have made while he was under interrogation by a police officer at a place selected by the police and in an environment from which all but the police and he had been excluded. It could not seriously be expected that those having custody of the child would voluntarily permit her to be questioned by the representatives of the man whom the Crown alleged indecently assaulted her. The obvious probability was that the applicant would be dependent upon the Crown for any information about the evidence which the child could be expected to give if she were to be called as a witness by the applicant without her evidence being tested by appropriate cross-examination on his behalf. If those considerations stood on their own, there would be something to be said for a conclusion that, when the applicant complained of the failure of the Crown to call the child as a witness, basic fairness to the accused required that the Crown either provide clear and satisfactory reasons why she was not being called or offer to call her as a witness to permit cross-examination of her by the applicant. In the present case, however, those considerations do not stand on their own. There are other considerations, appearing from the prosecution case against the applicant, which point far more strongly in the same direction. I turn to an examination of them.

The material in evidence indicates that the child made no complaint of the alleged assault until some three or four months after it was said to have occurred. That being so, evidence of the complaint which she finally made was not admissible since the complaint was not proximate to the alleged offence and afforded no evidence of the "consistency of the conduct of the prosecutrix" in maintaining that the applicant had assaulted her (see Reg. v. Lillyman [11] ; Kilby v. The Queen [12] ). Even if the child, as the alleged victim, had made a proximate complaint - not being part of the res gestae - that the applicant had indecently assaulted her, direct evidence of that complaint would have been properly admissible only if she had herself been called as a witness (see Sparks v. The Queen [13] ).

[1896] 2 Q.B. 167, at p. 170. 2. (1973) 129 C.L.R. 460, at p. 469ff. 3. [1964] A.C. 964, at pp. 978-980.

Detective Jenkins' evidence commenced with his account of the first conversation which he had with the applicant at the applicant's home. His evidence was that, having introduced himself and another policeman who accompanied him, he said to the applicant: "We are police officers from the Elizabeth C.I.B. We are investigating a complaint from [the child] that she has been indecently assaulted while staying at this house." According to Detective Jenkins, the rest of this initial conversation consisted of a denial by the applicant that he had assaulted the child and an arrangement that the applicant would attend at the Elizabeth C.I.B. office on the following night. The effect of that evidence was to place before the jury an assertion that the child had complained that she had been indecently assaulted at the home of the applicant. The implication was clear enough that the child alleged that the applicant was the assailant.

Detective Jenkins' evidence of what was said in the interview between the applicant and himself at the Elizabeth C.I.B. on the following evening left nothing to implication as to the child's alleged complaint. He gave evidence that the interview commenced with the following statement by himself: "We have been investigating a complaint by a young girl [the child]. She claims that while she was staying at your house over the last school holidays, she was sexually assaulted by you placing a finger in her vagina." It may be that such a reference, in the interview itself, to the child's alleged complaint was justified on the ground that it put the applicant on notice of the allegations against him. The same cannot be said of what was said to have occurred immediately after the applicant was alleged to have admitted the offence. The relevant extract from Detective Jenkins' evidence reads:

He said, "I'm sorry, I haven't been telling you the truth. I'd like to now."

I said, "What would you like to tell me, bearing in mind anything you do say will be taken down and may be given in evidence?"

He said, "I was in the lounge room on my own when [the child] came in. Cheryl was in the toilet. I went over to [the child] put my hand inside of her pants, placed my middle finger just inside her vagina, held it there for a while and she complained that it was getting sore. Then I removed my finger, pulled up her pants and said no more."

I said, "Are you now telling me that the story you have told me about [the child] coming in and complaining of being sore is incorrect?"

I said, "And did you in fact use any cream to her vagina?"

He said, "Yes, but after I'd placed my finger into her vagina."

I said, "[the child] has alleged in her statement that Cheryl was in the toilet and she was in the lounge room with you. She further stated you put your finger into her vagina and that you left it there for some time and then removed it as she told you it was hurting. Would you now agree with those allegations?"

It is difficult to conceive of any justification for Detective Jenkins' action in asking a question in the highly prejudicial form of that which is last set out in the above extract. The leading of evidence of that question at the trial did more than merely stress to the jury that the child had complained that she had been indecently assaulted by the applicant. Detective Jenkins' evidence that he had asked that question, in the context in which it was led, would inevitably be seen by the jury as providing support for the genuineness of the applicant's alleged confession in that it suggested that there existed complete correspondence between the confession which the applicant had allegedly made and a statement which the child herself had made about what had occurred.

No specific request was made to the trial judge to exclude evidence about what was alleged to have been said to the applicant about a complaint by the child. Objection was, however, taken on behalf of the applicant to the receipt of any evidence at all of the alleged interviews between the applicant and the police. More importantly, the absence of a specific objection is not significant for present purposes since the present relevance of the hearsay evidence of the child's complaint is that it constituted part of the context in which the Crown declined to call the child as a witness. It was the Crown which had led evidence against the applicant that the child complained that the applicant had indecently assaulted her. It was the Crown which led evidence which emphasized the close correspondence between the applicant's alleged confession and the complaint against him which the child was said to have made. Having led that evidence, the Crown placed the applicant in an intolerable position when, by declining to call the child, it deprived him of any opportunity of testing it by cross-examination and failed to provide any satisfactory reason for not calling her. It was not to the point to say, in the absence of the jury, that the child was "not capable" of giving evidence or that the Crown was "not satisfied she would be any use as a witness". Those very statements were calculated to raise questions as to the reliability of the complaints of the child of which the Crown had led evidence. They are quite inadequate to constitute a satisfactory explanation of the Crown's failure to call the child as a witness in circumstances in which it had, by leading evidence of an improper question asked by one of its police officers, effectively placed before the jury hearsay evidence that the child had made a statement that precisely corresponded with the applicant's alleged admission that he had indecently assaulted her.

In the above circumstances, the failure of the Crown to call the child as a witness or to provide some acceptable explanation for not calling her was unfair to the accused. No doubt, prosecuting counsel acted for what appeared to him to be worthy motives: there is no suggestion at all of professional misconduct on his part. The failure to observe the requirements of fairness was not, however, insignificant in the context of the overall trial. To the contrary, it affected the whole course and conduct of the trial and created a situation in which the applicant was denied, without any satisfactory explanation, the opportunity of testing, by cross-examination of a person whom the Crown was prima facie required to call as a witness, the genuineness and reliability of a damning statement by that person of which the Crown had led hearsay evidence. The unfairness of the position in which the applicant was placed was, no doubt inadvertently, highlighted by the learned trial judge when, in summing up to the jury, he mentioned that the applicant had been denied the opportunity of cross-examining the child "about the events, and if she is mistaken as to the identity, and indeed it was not the accused who committed the act against her but some other person " (underlining added). The reference to the possibility that the child was "mistaken as to the identity" of the person "who committed the act against her" would obviously convey to the jury the trial judge's acceptance of the allegation in the prosecution evidence that the child had stated that she had been assaulted by the applicant in the manner alleged by the Crown.

In the event, the applicant was denied a fair trial. That denial of a fair trial, constituted, in itself, a miscarriage of justice for the purposes of s. 353 of the Criminal Law Consolidation Act. Special leave to appeal should be granted. The appeal should be allowed and the conviction should be quashed.

The applicant was convicted upon one count of indecent assault upon a seven-year-old girl. The child's mother is the applicant's sister-in-law and the applicant claimed that he is the father of the child as the result of sexual intercourse which took place when the applicant was living in the same house as the mother and her husband. This claim was denied by the mother but it was not an issue of any significance in the outcome.

The Crown called only two witnesses, the mother and the policeman who interviewed the applicant, a Constable Jenkins. The mother gave evidence of the child's age and the fact that she had stayed with the applicant and his wife over the Christmas holidays from 1 December 1981 until 7 February 1982. The Crown alleged that it was during this time that the offence was committed. In the course of the mother's cross-examination, it emerged that the child had said something to a woman at Whyalla with whom she was staying during the holidays in May 1982 and that this was repeated to the mother who approached the police. Subsequently the child was interviewed and a statement obtained from her. There was, therefore, a substantial delay of some three or four months between the alleged offence and any complaint by the child.

The evidence of Constable Jenkins was that he had called at the applicant's house on 15 June 1982 and informed the applicant that he was investigating the child's complaint that she had been indecently assaulted while staying at that house. The applicant replied: "Not me. I wouldn't touch her. I am her real father. I have too much respect for her." Constable Jenkins said that he then requested the applicant to attend at the Elizabeth police station the next evening and the applicant agreed to do so. In cross-examination Constable Jenkins admitted that whilst at the applicant's house he did ask the applicant whether he was called by the nickname of "Skinny Guts", a name apparently used by the child in her statement to the police. That statement had not been taken by Constable Jenkins and was not, of course, in evidence. The only identification of the applicant by the child as the person who committed the alleged offence was, apparently, in her statement.

The applicant attended the police station the next evening, arriving about 7 o'clock. Constable Jenkins said that he first began to speak with the applicant between 7.30 and 7.45. He put to the applicant in detail the allegation that he had committed the offence and the applicant denied it. Again, Constable Jenkins mentioned the name "Skinny Guts" to the applicant who replied that the only person he knew with the nickname of "Skinny Guts" was Raymond Phillips. This was a reference to the husband of the child's mother and the ostensible father of the child. On both occasions upon which the name "Skinny Guts" was mentioned to the applicant by Constable Jenkins - at his home and at the police station - the applicant denied he was known by that name. No record was made by Constable Jenkins of his conversation with the applicant before 9.00 p.m. Thereafter he compiled a formal record of interview comprising six pages over a period of some two hours. The first part of this record of interview contains statements by the applicant that he had applied Savlon ointment to the child's vaginal area because of a complaint of soreness by her. Some discrepancies in the account given by the applicant in the first part of the record of interview were pointed out to him and he is recorded as saying "I'm sorry I haven't been telling you the truth. I'd like to now." Thereafter follows an account amounting to a confession of the offence. No mention was made in the record of interview of the name "Skinny Guts". The record of interview is signed on each page by the applicant and contains at the end some handwritten answers which were filled in by the applicant and in which he admits that he has read the record, that it is a true and accurate account and that his answers were voluntarily given.

A voir dire was held to determine whether the confession by the applicant was voluntary, a submission made on his behalf being that it was not. It was said that he denied the offence over a considerable period of time but that his will was overborne by persistent questioning, despite his denials, during that time. The trial judge was satisfied that the confession was voluntary and the record of interview was placed in evidence. During the course of the voir dire Constable Jenkins gave evidence of the circumstances in which he began to compile the record of interview at about 9.00 p.m. He said:

Mr. Whitehorn had completely denied any involvement in the matter, and I was in fact standing up saying goodbye to him, and I said something along the lines of "I want you to go home and think about what's happened, and if you have any problems of this nature, you know where to ring me" and he made the comment "Yes. I have got problems and I have to think about it." That made me then think perhaps he wasn't telling the whole truth.

The child's mother gave evidence for the Crown and in cross-examination said that she had not heard her husband called "Skinny Guts" but that her daughter had called the applicant by that name.

At the close of the Crown case counsel for the applicant pointed out that, although the Crown had advised him before the commencement of the trial that the complainant was not to be called as witness, her name appeared on the information which had been filed as one of the witnesses to be called by the Crown. His submission was that in the absence of evidence from the complainant it was dangerous or unfair to leave the case to the jury. The Crown Prosecutor gave as his reason for not calling the complainant that he was not satisfied that "she would be any use as a witness" and that "she would not have been capable of giving evidence". He said that the Crown "had no option but to proceed with just these two witnesses". The trial judge pointed out that he had no control over what the Crown did but made the comment to the Crown Prosecutor that "you certainly are in a very, very weak position as I understand your case without the girl being here".

Reference was made to Reg. v. Prasad [14] and, on the basis of that decision, counsel for the applicant substituted for his previous submission a submission that the jury should at that stage be given what the trial judge referred to as a "Prasad invitation", i.e., an invitation to acquit the applicant notwithstanding that there was evidence upon which he could lawfully be convicted if they were of the view that the evidence was so lacking in weight and reliability that they could not safely convict on it. The trial judge did not accede to this submission.

The applicant gave evidence in which he denied the offence. He explained his signature of the record of interview saying: "After being in that police station with the detectives throwing questions like they were at me, getting confusing - Detective Jenkins he said "Read it and sign it", which I did." The applicant said that during the interview the name "Skinny Guts" was mentioned frequently and he pointed out that Raymond Phillips had been called by that name for many years. The applicant's wife was called to give evidence as part of the defence case and she said that the complainant had once said that Raymond Phillips' name was "Skinny Guts" but that the complainant had never used the name to refer to the applicant. In addition, another witness was called who said that Raymond Phillips had the nickname "Skinny Guts" but that she had never heard that name used in relation to the applicant. A fourth witness for the defence said that she had not heard the complainant refer to the applicant as "Skinny Guts" but that she, the witness, always called Raymond Phillips "Skinny Guts".

In the instant case there is before the court evidence only of the confession itself, and you have not heard from the child Now, that is a circumstance which sometimes is an unfortunate one. The fact of the matter is that the accused is deprived of cross-examining the child about the events, and if she is mistaken as to the identity, and indeed it was not the accused who committed this act against her but some other person, then in those circumstances it may well have been a better state of affairs if she were brought here and the accused was given the right, as would be his right, to cross-examine the child and to ask her about exactly when, where and how these events occurred, because what happened is the Crown has advanced a signed document, which the accused now says was got from him not because it was the fact, but because he was prepared to sign it so that he could leave the police station and go away. Now, it might well have been, you may think, a better state of affairs if the child were brought here, not in the sense that it would be better for any of us, it would be difficult, it would be uncomfortable; but nevertheless, it is a matter which you should perhaps think about. The charge went on to point out that it was "more the rule than the exception that children who are alleging indecent assault upon them do come to court and do give evidence of the allegations which they are making" and to comment that in the circumstances one would have thought that the child in this case would have been called.

It is still open to you to look at the whole of the evidence, and from the whole of the evidence, which includes the statement alleged to have been made freely and voluntarily by the accused, it is open to you to bring a verdict adverse to the accused, but before you do, you will approach the matter with considerable caution. You will think carefully about the absence of the child. You will think carefully about what the accused has said to you about the night at the police station, and you will weigh up what the police officer has said about what happened. No objection was taken to the trial judge's charge.

The applicant was convicted and appealed unsuccessfully to the Court of Criminal Appeal. He now seeks leave to appeal to this Court.

The first ground upon which the application is made challenges the ruling that the applicant's confession was admissible in evidence. The second ground is that the trial judge erred in not directing the jury to return a verdict of not guilty at the close of the Crown case or, alternatively, at the close of the case for the defence. That ground was not argued. The third and fourth grounds complain of the failure of the trial judge to direct the Crown Prosecutor to call the complainant as a witness or to call her as a witness herself. The final ground is that the South Australian Court of Criminal Appeal erred in ruling that the applicant had received a fair trial and that there had not been a miscarriage of justice.

It is convenient to put the first ground to one side and to turn immediately to the third and fourth grounds. It should be observed at the outset that no application was made by counsel for the applicant that the trial judge should direct the Crown to call the complainant or should call her himself. That may of itself be sufficient to dispose of these grounds, but it is desirable to say something further about them lest it be thought that they otherwise have merit.

In Richardson v. The Queen [15] this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.

Nevertheless, there is good guidance in the cases for what constitutes a material witness. All 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 all, then a 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. See R. v. Dora Harris [16] ; Ziems v. Prothonotary of the Supreme Court of N.S.W. [17] ; Seneviratne v. The King [18] ;Adel Muhammed El Dabbah v. Attorney-General (Palestine) [19] ; Reg. v. Oliva [20] ; Reg. v. Lawson [21] ; Reg. v. Lucas [22] .

[1927] 2 K.B. 587, at p. 590. 2. (1957) 97 C.L.R. 279, at p.294. 3. [1936] 3 All E.R. 36, at p. 49. 4. [1944] A.C. 156, at pp. 167-169. 5. [1965] 1 W.L.R. 1028; [1965] 3 All E.R. 116. 6. [1960] V.R. 37. 7. [1973] V.R. 693, at pp. 705-708.

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 trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown Prosecutor may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in the trial process. As Barwick C.J. pointed out in Ratten v. The Queen [23] :

It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. 1. (1974) 131 C.L.R. 510, at p. 517.

The means by which a trial judge may ensure the propriety and fairness of a trial do not, however, extend to the assumption of responsibilities which are properly those of the parties. The decision whether to call or not to call witnesses in a criminal trial is a decision for the parties. If the Crown fails to call a witness whom the trial judge considers ought to be called, no doubt he may invite the Crown to reconsider whether the witness ought to be called and if the invitation is declined, and the judge remains of the same view, he may comment upon the failure of the Crown to call the witness. But if the trial judge were to do more, he would place himself in danger of usurping the function of the prosecutor.

Support is to be found in the cases for the view that a judge in a criminal trial has the right to call a witness not called by either the prosecution or the defence, without the consent of either the prosecution or the defence, if in his opinion that course is necessary in the interests of justice. See Reg. v. Chapman [24] ;Reg. v. Holden [25] ; Reg. v. Stroner [26] ; Reg. v. Edwards [27] ; R. v. Collins [28] ; R. v. Harris [29] ; R. v. Liddle [30] ; R. v. McMahon [31] ; Adel Muhammed El Dabbah v. Attorney-General (Palestine) [32] ; Reg. v. Oliva [33] ; Reg. v. Tregear [34] ; Reg. v. Cleghorn [35] ; Reg. v. Evans [36] ; Reg. v. Lucas [37] ; Reg. v. Damic [38] .

(1838) 8 Car.& P. 558 [173 E.R. 617]. 2. (1838) 8 Car.& P. 606 [173 E.R. 638]. 3. [1845] 1 Car.& K. 650 [174 E.R. 976]. 4. (1848) 3 Cox C.C. 82. 5. [1907] V.L.R. 292. 6. [1927] 2 K.B. 587. 7. (1928) 21 Cr.App.R. 3. 8. (1933) 24 Cr.App.R. 95. 9. [1944] A.C., at p. 168. 10. [1965] 3 All E.R. 116. 11. (1967) 51 Cr.App.R. 280. 12. [1967] 2 Q.B. 584. 13. [1964] V.R. 717, at p. 719. 14. [1973] V.R., at p. 706. 15. [1982] 2 N.S.W.L.R. 750.

In the English decisions, beginning with R. v. Harris, a limitation has been placed upon the exercise by the trial judge of this right by the application of a rule of practice said to have been laid down by Tindal C.J. in Reg. v. Frost [39] . That rule, which is applied by analogy since it deals with the Crown's right to call evidence in rebuttal, is as follows:

There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter may not be answered by contrary evidence on the part of the Crown. That rule, it was said, should "also apply to a case where a witness is called in a criminal trial by the judge after the case for the defence is closed" and "the practice should be limited to a case where a matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue": R. v. Harris [40] . See also R. v. Liddle [41] ; R. v. McMahon [42] ; Reg. v. Cleghorn [43] ; cf. Reg. v. John Owen [44] ; Reg. v. Tregear [45] . 1. (1840) 4 St.Tr.(N.S.) 86, at p. 386; 9 Car.& P. 129, at p. 159 [173 E.R. 771, at p. 784]. 2. [1927] 2 K.B., at p. 595. 3. (1928) 21 Cr.App.R. 3. 4. (1933) 24 Cr.App.R. 95. 5. [1967] 2 Q.B. 584. 6. [1952] 2 Q.B. 362. 7. (1967) 51 Cr.App.R. 280.

This formula adopted from Tindal C.J. was said in Shaw v. The Queen [6] to have little to commend it, whether applied to the power of a judge to call a witness himself or to his power to allow the prosecution to recall a witness or call a new witness once the case for the prosecution has closed [7] . Apart from the unsatisfactory meaning of the language attributed to Tindal C.J. [8] , the rule when applied to the right of the prosecution to call evidence in rebuttal was said to be too strict and too rigid having regard to the almost infinite variety of difficulties that may arise at a criminal trial. This Court declined to adopt the formula as a rule of practice governing the right of the prosecution to call further evidence.

(1952) 85 C.L.R. 365. 2. (1952) 85 C.L.R., at p. 379. 3. (1952) 85 C.L.R., at pp. 378-379.

However, the Court pointed out that in this country no question arises concerning the applicability of such a rule of practice to the power of a judge to call a witness in criminal proceedings because here it has been decided that a judge does not have that power.

The majority (Dixon, McTiernan, Webb and Kitto JJ.) said [9] :

The decisions in England allow the presiding judge at a criminal trial to call a witness if he thinks the imperative demands of justice require it. This view was acted on in Victoria (R. v. Collins [10] ). But in Titheradge v. The King [11] this Court denied the power. In a separate judgment Fullagar J. agreed with the reasoning of the other members of the Court. He too rejected the rule of practice said to have been laid down in Reg. v. Frost. He said [12] : the rule so stated is on its face fundamentally unsound and calculated not to aid but to impede the administration of justice. After all, the aim of legal proceedings, including criminal proceedings, is supposed to be to elicit the truth so far as human imperfection permits. I cannot feel the slightest doubt that the course taken by Cussen J. in R. v. Collins [13] was entirely correct and proper. 1. (1952) 85 C.L.R., at p. 379. 2. [1907] V.L.R. 292. 3. (1917) 24 C.L.R. 107. 4. (1952) 85 C.L.R., at p. 383. 5. [1907] V.L.R. 292.

In R. v. Collins Cussen J. had called a witness at the request of the jury after they had retired. It does not appear that he did so with the consent of the parties. It is to my mind clear enough that in referring with approval to the course taken by Cussen J., Fullagar J. was not intending to express disagreement with the other members of the Court upon the effect of Titheradge v. The King (which, had it then been decided, would have been against the course taken by Cussen J.) but was referring to the fact that Cussen J. did not consider himself to be impeded by any rule of practice in calling a witness after the defence had closed its case.

Before turning to Titheradge v. The King it is necessary to refer to two civil cases in England: Coulson v. Disborough [14] and In re Enoch and Zaretzky, Bock & Co. [15] . In the former of these two cases the Court of Appeal took the view that a judge might himself call a witness whom neither party to the action chose to call but in that event neither party was entitled, as of right, to cross-examine that witness. The question of entitlement to cross-examine arose in the case because the judge having called and examined the witness, the plaintiff's counsel asked leave to cross-examine him and leave was refused. The refusal of the trial judge to allow the cross-examination was held to be justified because the witness's evidence turned out to be immaterial "and the only reason for cross-examining him must have been a wish to prejudice the jury". At the same time it was conceded by the Court of Appeal that if what the witness had said in answer to questions put to him by the judge had been adverse to either of the parties, cross-examination by the party concerned ought to have been allowed. A. L. Smith L.J. added [16] : "A witness called in this way is the witness of the judge, not of either of the parties."

[1894] 2 Q.B. 316. 2. [1910] 1 K.B. 327. 3. [1894] 2 Q.B., at p. 318.

In In re Enoch and Zaretzky, Bock & Co. it was held that an arbitrator no less than a judge was bound to observe the rules of evidence and that those rules precluded a judge from calling a witness in a civil action without the consent of the parties. It was said that if the relevant dictum in Coulson v. Disborough purported to lay down that a judge may call a witness over the objection of either of the parties, then it went too far. Fletcher Moulton L.J. said [17] :

I say that it would be destructive of the fundamental principles of our laws of procedure for the reason that if, according to the dictum, witnesses were called against the will of one of the parties, the civil rights of a man might be decided by evidence given by persons whose personal credibility and the accuracy of whose statements he would have no right to test by cross-examination; because the Court of Appeal laid down that if a judge calls a witness, neither party can cross-examine him as of right. Such a proposition may be most reasonable if the witness has been called with the assent of both parties, because he cannot be called a witness of either party. But it would lead to consequences which I do not like to contemplate if the dictum were supposed to apply to cases where a judge calls a witness to the facts of the case without the consent of the parties and then refuses, or has the power to refuse, to allow any cross-examination. I think, therefore, that the dictum refers only to cases where a judge has called a witness with the acquiescence of both parties, and has done so in order to get over the difficulty that if either party calls a witness he is supposed to be responsible for his personal credibility, though not for the accuracy of his statements, for it is well known that if a party calls a witness he may not attack his general credibility. There may in some cases be a person whom it would be desirable to have before the Court; but neither party wishes to take the responsibility of vouching his personal credibility, or admitting that he is fit to be called as a witness. In such a case the judge may relieve the parties by letting him go into the box as a witness of neither party; and, of course, if the answers are immaterial he may refuse to allow cross-examination. But the dictum does not lay down, and in my opinion it is certainly not the law, that a judge, or any person in a judicial position, such as an arbitrator, has any power himself to call witnesses to fact against the will of either of the parties. Farwell L.J. expressed agreement and criticized the observation made by A. L. Smith L.J. in Coulson v. Disborough [18] that a witness called by the judge is the witness of the judge and not of either of the parties. He said [19] : I venture to think it is not accurate to say a judge ever in a civil action has a witness of his own. He is there to determine on the evidence called, and, in the case put, the witness, although called, would be a witness to be dealt with as an ordinary witness, the learned judge's qualification being true to this extent, that it is not open to the counsel on either side to comment on the evidence given on the footing that he is either the plaintiff's witness or the defendant's witness. 1. [1910] 1 K.B., at p. 333. 2. [1894] 2 Q.B., at p. 318. 3. [1910] 1 K.B., at p. 337.

In Titheradge v. The King [20] the trial judge called a witness whom both the accused and the Crown declined to call although neither side expressly objected to the course taken by the judge. When the witness having given evidence denied making a former inconsistent statement, the judge recalled two witnesses and obtained from them evidence of that statement. Barton J. referred to In re Enoch and Zaretzky, Bock & Co. [21] and to Reg. v. Holden [22] and accepted that there have been instances in both civil and criminal cases where a witness has been called by the judge. He regarded them as exceptional and pointed out that a trial, whether civil or criminal, is a proceeding inter partes in which the determination of the evidence to be called is "in principle the concern of the parties". He continued [23] :

Where departures from the rigid observance of this principle have occurred, it has, I think, been upon necessity, as, for instance, in the case where, the parties having definitely closed their evidence, the jury wish a person present to be called for their better information. But the right, where it exists, of a Judge to take the conduct of the examination of persons not called by either party must be used with extreme caution. In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent. This is especially true in a criminal case. Sec. 404 of the Crimes Act, No. 40 of 1900, enacts that "every accused person on his trial may, if so advised by counsel, make any admissions as to matters of fact, whatever the crime charged, or give any consent which might lawfully be given in a civil case. " It seems to me that in a criminal case the defence ought to be asked whether the accused consents to the course which the Judge proposes to take when he desires (for strong cause) to examine a witness, and the examination ought not to take place without such consent. No such consent was asked or given here. That was, I think, a substantial irregularity. 1. (1917) 24 C.L.R. 107. 2. [1910] 1 K.B. 327. 3. (1838) 8 Car.& P. 606 [173 E.R. 638]. 4. (1917) 24 C.L.R., at pp. 116-117.

Isaacs and Rich JJ. put the same view succinctly [24] :

In view of the decision of the Court of Appeal in In re Enoch and Zaretzky, Bock & Co.'s Arbitration and the principle there enunciated, it is impossible to see any reason why a judge has power to call any evidence ex mero motu in a criminal trial - except where the Crown raises no objection and, by Statute, the accused may and in fact does consent in manner provided by law, or where the Court has special statutory authority otherwise. The observations of Lord (then Lord Justice) Moulton are of general application to the administration of justice both civil and criminal. 1. (1917) 24 C.L.R., at p. 118.

In England the narrow limits imposed upon the power of a judge to call a witness in a civil action were not extended to criminal cases. In R. v. Harris [25] the Court of Criminal Appeal said:

As to the first point, it has been clearly laid down by the Court of Appeal in In re Enoch and Zaretzky, Bock & Co. that in a civil suit the judge has no right to call a witness not called by either party, unless he does so with the consent of both of the parties. It also appears to be clearly established that that rule does not apply to a criminal trial where the liberty of a subject is at stake and where the sole object of the proceedings is to make certain that justice should be done as between the subject and the State. The cases of Reg. v. Chapman [26] and Reg. v. Holden [27] establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, and without the consent of either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. The Court went on to adopt, as I have observed, the rule said to have been laid down by Tindal C.J. in Reg. v. Frost [28] as a limit to the point in criminal proceedings where a judge might exercise the right to call a witness. 1. [1927] 2 K.B., at p. 594. 2. (1838) 8 Car.& P. 558 [173 E.R. 617]. 3. (1838) 8 Car.& P. 606 [173 E.R. 638]. 4. (1840) 4 St.Tr. (N.S.), at p. 386-9 Car.& P., at p. 159 [173 E.R., at p. 784].

It has also been emphasized in the English cases that the judge's discretion to call a witness in criminal proceedings should be exercised with caution. See, e.g., Reg. v. Cleghorn [29] .

There is, I think, a clear divergence in this aspect of criminal law and procedure between England and this country. Since Titheradge v. The King [30] it has been established here that the rule is the same in civil and criminal cases and that a witness cannot be called by the judge save with the consent of both parties and then only in exceptional circumstances. In England there is a wider discretion in criminal cases. That was the view taken by this Court in Shaw v. The Queen [31] of the position here, notwithstanding the different opinion expressed in cases such as R. v. Harris [32] . Indeed, in Shaw v. The Queen [33] the majority were prepared to say without qualification that in Titheradge v. The King this Court denied the power to a presiding judge at a criminal trial to call a witness. The possible exception that in sufficiently compelling circumstances he may do so if both the prosecution and defence give their consent is not referred to. This omission may be explicable upon the basis that such circumstances are so unlikely to occur as not to require specific mention. Speaking for myself, I confess that I find it difficult to envisage circumstances which would be so compelling that, even with the consent of the parties, a judge should in a criminal trial assume the function of calling a witness whom neither of the parties are prepared to call themselves. Nevertheless, it is clear that in Titheradge v. The King a discretion was reserved to a trial judge to call a witness in a criminal trial provided both parties consent.

(1917) 24 C.L.R. 107. 2. (1952) 85 C.L.R. 365. 3. [1927] 2 K.B. 587. 4. (1952) 85 C.L.R., at p. 379.

In Richardson v. The Queen [34] this Court adverted to the question of a trial judge's power to call a witness himself but it was not necessary to answer that question in order to determine any issue in that case. Perhaps for this reason the Court's attention was not directed to, nor did it refer to, Titheradge v. The King. Nevertheless it expressed doubts about the existence of the power in criminal proceedings and said [35] :

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 [36] ). 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. 1. (1974) 131 C.L.R. 116. 2. (1974) 131 C.L.R., at p. 122. 3. [1960] V.R., at p. 40.

Whilst Coulson v. Disborough and In re Enoch and Zaretzky, Bock & Co. provide authority for the decision in Titheradge v. The King, the reasoning in those cases is directed to procedural matters rather than the more fundamental considerations which underlie the judgments. It can hardly be supposed that In re Enoch and Zaretzky, Bock & Co. decided no more than that a judge might not call a witness himself without the consent of the parties because they would then be denied any right to cross-examine the witness and might be refused leave to do so. Had that been the real basis of the decision there would seem to have been little difficulty in laying down a rule which would afford adequate opportunity for cross-examination. The reality is that to assert the power of a judge to call a witness himself is to raise considerations which, in our adversary system, have serious implications. That is why any assertion of the existence of such a power is invariably qualified by reference to the rarity of the occasions upon which its exercise will be justified and the extreme caution which should be observed in its use.

A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel. He is not equipped to do so, particularly in making a decision whether a witness should be called. As was pointed out in Richardson v. The Queen [37] , he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision. If he calls a witness himself he will almost always have to do so in the dark, not knowing with any certainty what the witness is going to say or whether he can be relied upon. Cf. R. v. Collins [38] . If the witness is unreliable (and if neither party has seen fit to call him, that is more likely than not), the fact that he is called by the judge may give his evidence an undesirable aspect of objectivity. There can be no assurance that his credit will be tested by either side but if it is, the judge has no means whereby he can ensure that any necessary steps to re-establish the witness's credit are taken. Because the judge does not know what a witness called by him may say, he may by calling him necessitate the calling of further evidence so that the trial takes a turn which was not intended and which further involves the judge in a function not appropriately his.

(1974) 131 C.L.R., at p. 122. 2. [1907] V.L.R. 292.

Moreover, evidence called by a trial judge may have the effect of shifting the ground upon which the parties have determined to contest the issue; indeed it may have the effect of altering the issue itself. In Reg. v. Damic [39] , the accused was charged with one count of murder and three counts of malicious wounding and was, by his own choice, unrepresented. His fitness to plead had previously been tried and he had been found fit to plead. It was plain that the accused had no intention of calling evidence as to his sanity at the time of the alleged offence conclusion of the Crown case but before it was closed, the trial judge called as a witness a psychiatrist who had previously been called at the trial of the accused's fitness to plead. At the invitation of the judge, the Crown examined the witness as amicus curiae and before any crucial questions were asked of him, the judge ascertained from the accused that he had no objection to questions being asked concerning his mental health at the time of the alleged offence. The effect of the witness's evidence was that the accused was at the relevant time legally insane. The witness was cross-examined by the accused who challenged this evidence. The jury returned verdicts of not guilty on the ground of mental illness.

Upon appeal, the Court of Criminal Appeal held that the course taken by the trial judge was permissible. It was of the view that [40] :

Titheradge [41] is not binding authority to the effect that there is no power in a trial judge to call a witness. It seems best to identify it as a decision to the effect that a miscarriage of justice will arise if a judge calls a witness of his own motion and thereafter descends to an excessive degree into the adversarial arena. In my opinion, it is not possible to regard Titheradge v. The King in this way. The view of the majority was unequivocally expressed that a trial judge does not have the power to call a witness of his own motion without the effective consent of both parties. Moreover, the Court of Criminal Appeal in Reg. v. Damic appears to have disregarded the view subsequently taken by this Court in Shaw v. The Queen that Titheradge v. The King is authority for the proposition that no distinction is to be drawn in this country between criminal trials and civil actions with regard to the power of a judge to call a witness. 1. [1982] 2 N.S.W.L.R., at p. 759. 2. (1917) 24 C.L.R. 107.

As a result of the view which it took (wrongly I think) of Titheradge v. The King, the Court of Criminal Appeal in Reg. v. Damic does not appear to have pursued the question whether the parties in that case consented, or were in a position to consent, to the course taken by the trial judge. One obvious question which arose was whether the accused appreciated the effect of his apparent consent. (See MacPherson v. The Queen [42] .) That question assumed particular importance because the effect of the evidence called by the judge was to raise an issue which the prosecution could not raise and the defence had chosen not to raise, namely, the existence of a defence of insanity. See Reg. v. Jeffrey [43] ; Reg. v. Joyce [44] . Cf. Bratty v. Attorney-General (Northern Ireland [45] ); Lo Tin v. The Queen [50] . The success of such a defence had important consequences for the accused, entailing, as it did, a deprivation of his liberty for an indefinite and possibly prolonged period. In any event, it is far from clear that, even if both parties had effectively consented, the case was one of those rare instances in which the trial judge ought himself to have called evidence, involving himself, as he did, in the determination of the issues to be tried.

(1981) 147 C.L.R. 512. 2. [1967] V.R. 467, at p. 473. 3. [1970] S.A.S.R. 184, at pp. 187-188. 4. [1963] A.C. 386, at p. 411. 5. [1964] Crim. L.R. 135.

In the present case there can be no complaint that the trial judge failed to direct the Crown Prosecutor to call the complainant as a witness or to call her as a witness himself. For the reasons which I have given, it formed no part of the trial judge's functions to direct the prosecution's choice of witnesses. Nor was this a case in which, however desirable it may have been that the complainant ought to have been called as part of the Crown case and whatever the effect of the failure of the Crown to call her, the trial judge had power to call her of his own motion. It does not appear that he could have done so without objection from the Crown, and even if the Crown had consented, it is not a case in which there were exceptional circumstances which would have justified that course.

To reach that conclusion does not, however, justify the failure of the Crown to call the complainant as a witness. That is a matter which calls for separate consideration under the last ground of appeal which alleges that there was, by reason of that failure, a miscarriage of justice. The basis of the submission upon this ground is that the verdict of the jury is unsafe and unsatisfactory having regard to the evidence. That does not raise the question whether, as a matter of law, there was any evidence upon which the applicant could be convicted. Clearly there was the confession alleged against him. It raises a different question.

Section 353 of the Criminal Law Consolidation Act 1935-1975 SA is in the common Australian form, adopted from the English Criminal Appeal Act 1907. Under that section there are three grounds upon which an appeal against conviction may be allowed. First, it may be allowed if the verdict is unreasonable or cannot be supported having regard to the evidence; secondly, if there has been an error of law; and, thirdly, if on any ground there was a miscarriage of justice. It is the first of these grounds which is relevant in this case. Although the third ground speaks of miscarriage of justice specifically, each of the first and second grounds is also concerned with the occurrence of such a miscarriage. For an error of law or a verdict which is unreasonable or cannot be supported on the evidence will amount to a miscarriage of justice.

This Court has not been constrained in the view which it has taken of what constitutes a verdict which is unreasonable or cannot be supported having regard to the evidence. In Reg. v. McGibbon [51] , the Victorian Court of Criminal Appeal suggested that this ground could not be made out upon an insufficiency of evidence stopping short of an absence of evidence upon which a reasonable jury properly directed could arrive at a verdict. This restrictive view has not found favour. In Raspor v. The Queen [52] , it was pointed out that if that view were correct, the question which arose involved an error of law. Having regard to the specific provision made for correcting an error of law and having regard to those provisions of the criminal appeal legislation which contemplate the examination of questions of fact by a court of criminal appeal it was, it was said, clear that if the ground was taken that a verdict was unreasonable or could not be supported on the evidence, a court of criminal appeal was obliged to go beyond the consideration of that question of law.

[1956] V.L.R. 424, at p. 427. 2. (1958) 99 C.L.R. 346, at p. 350.

There are various expressions used in the cases to indicate when it is that a court of criminal appeal should regard the evidence as insufficient to support a verdict. In Davies and Cody v. The King [53] , the court spoke of setting aside a verdict which appears "unjust or unsafe" and although in that case the question was one of the identification of the appellants and the methods used to establish their identity, the decision in the end rests upon the sufficiency of the evidence to support the verdict [54] . In Plomp v. The Queen [55] , Dixon C.J. said a court of criminal appeal may interfere with a conviction if it thinks that "it was dangerous to convict in all the circumstances". In the same case, Menzies J. [56] expressed the question as being whether "this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt". The expressions "dangerous in the administration of justice" and "dangerous in all the circumstances" were used by Barwick C.J. in Hayes v. The Queen [57] to describe a verdict of guilty which ought to be set aside. And in Ratten v. The Queen [58] he said that "under the Australian provisions a court of criminal appeal in Australia should allow an appeal if on its own view of the evidence it would be dangerous or unsafe in the administration of the criminal law to allow a verdict of guilty to stand". He went on to point out that a court's decision upon this ground will be founded upon its own independent assessment of the evidence [59] .

(1937) 57 C.L.R. 170, at p. 180. 2. (1937) 57 C.L.R., at pp. 180-181. 3. (1963) 110 C.L.R. 234, at p. 244. 4. (1963) 110 C.L.R., at p. 247. 5. (1973) 47 A.L.J.R. 603, at p. 604. 6. (1974) 131 C.L.R., at p. 515. 7. (1974) 131 C.L.R., at p. 516.

To describe a verdict which ought to be set aside because it is unreasonable or cannot be supported having regard to the evidence as being an unsafe, unjust or dangerous verdict is, no doubt, to emphasize that the power of a court of criminal appeal to substitute another view of what the evidence will support for that of the jury is not to be exercised lightly. As was said by the Court in Raspor v. The Queen [1] , "Verdicts of course ought not to be, and are not in practice, set aside except upon very substantial grounds." But they are descriptions which, useful as they are, tend to restate the question rather than answer it. For the question must in the end be, to use the words of Menzies J., whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. If the appellate court is unable to reach that conclusion, then it would be unsafe or dangerous or unjust to allow the verdict to stand. The formulation of the question in this way was, however, criticized by Barwick C.J. in Ratten v. The Queen. He expressed the view that a verdict of guilty constitutes a miscarriage of justice if, on the evidence before it, a court of criminal appeal is of the opinion that there exists such a doubt as to guilt that the verdict should not be allowed to stand. He said [2] :

It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration. With the greatest of respect for the view expressed by his Honour, it does not appear to me to be circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has. 1. (1958) 99 C.L.R., at p. 352. 2. (1974) 131 C.L.R., at p. 516.

In many cases it may be unnecessary to make such a distinction because a doubt experienced by an appellate court will be a doubt which a reasonable jury ought also to have experienced. But the evidence before the appellate court will seldom, if ever, be in the same form as the evidence before the jury. In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot. A court of appeal is concerned to maintain the standards required by the law in the conduct of trials, including a standard of proof. It is concerned to discern whether the evidence is capable upon that standard of proof of supporting a verdict of guilty reached by a jury. No doubt when an appeal court is required to embark upon questions of fact there is a coincidence of function between it and a jury because a jury, properly directed, is concerned to apply the same standard. But the coincidence is far from complete, for the functions of a jury extend beyond those which an appeal court is required to exercise or is capable of exercising. Far-reaching as the ground of appeal relied upon is, it "is not intended to substitute for trial by twelve jurymen who have seen and heard the witnesses trial by three Judges who have not": Reg. v. Cable [3] .

It is far from inconceivable that a court of appeal may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial. Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences such may well be the case. It is, I think, for this reason that the observation has been made that the power to set aside verdicts which are against the weight of the evidence is to be exercised with caution and discrimination. See Raspor v. The Queen [4] . Such an observation would be largely meaningless if the question were merely whether the appellate court itself experienced a doubt. A court of criminal appeal should conclude that a verdict is unreasonable or cannot be supported having regard to the evidence if, on the evidence, it considers it to be unsafe or unsatisfactory. The verdict will be unsafe or unsatisfactory if the court of appeal concludes that the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal.

It is unnecessary to explore how far the Australian view extends beyond the English view of the equivalent provision in the Criminal Appeal Act 1907 UK if, indeed, it does so at all. Any difference may be explicable upon the basis that, unlike Australian courts of criminal appeal, the English court was not granted power to order a new trial until 1964 and then only in a limited class of cases, a more general power subsequently being given by the Criminal Appeal Act 1968 UK. Moreover, the Criminal Appeal Act 1966 UK amended the appellate powers of the Court of Appeal and it now may set aside a conviction on the ground that in all the circumstances of the case it is unsafe or unsatisfactory. See s. 2(1), Criminal Appeal Act 1968. If in England there was any doubt that the power under the Act of 1907 to allow an appeal upon the ground that the verdict was unreasonable or could not be supported by the evidence was as wide as the power under the equivalent Australian provisions, the present legislation leaves no room for doubt. See Stafford v. Director of Public Prosecutions [1] . Indeed, as the present provision in England has been interpreted, it extends the power of the Court of Appeal in England beyond that of courts of criminal appeal in Australia. In Reg. v. Cooper (Sean) [2] , Widgery L.J. said:

However we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it. This passage was cited with approval in Stafford v. Director of Public Prosecutions [3] where it was said that it "is not to be doubted" that this is the effect of the present legislation. Wide as the powers of an Australian court of criminal appeal are, they do not, under the legislation which prevails in this country, empower a court to set aside a verdict upon any speculative or intuitive basis. 1. [1974] A.C. 878, at p. 891. 2. [1969] 1 Q.B. 267, at p. 271. 3. [1974] A.C., at p. 892.

Nor is it necessary in this case to pursue the question whether a trial judge may withdraw a case from the jury at the close of the Crown case upon the basis that a conviction upon the evidence at that stage would be dangerous or unsafe. The view has been expressed and, I think, acted upon not infrequently that a trial judge's powers in this regard extend to enabling him to avoid an error which would ultimately fall to be corrected upon appeal. See Plomp v. The Queen [4] , per Menzies J.; Reg. v. Mansfield [5] ; cf. Reg. v. Galbraith [6] . The contrary view has been taken by the Courts of Criminal Appeal in South Australia and Victoria in Reg. v. Prasad [7] and Attorney-General's Appeal No. 1 of 1983 [8] . However, no argument was addressed to the Court that these cases and, in particular, Reg. v. Prasad, do not correctly state the law, nor was it necessary to put such an argument in this case.

(1963) 110 C.L.R., at p. 246. 2. [1977] 1 W.L.R. 1102; [1978] 1 All E.R. 134. 3. [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060. 4. (1979) 23 S.A.S.R. 161. 5. [1983] 2 V.R. 410.

If the verdict in this case ought not be allowed to stand because it is unreasonable or is not supported by the evidence, then the Court of Criminal Appeal in South Australia had power, as does this Court upon special leave to appeal being granted, to set the verdict aside. In my view, the verdict ought to have been set aside by the Court below. Notwithstanding the caution with which that power should be exercised, it seems to me that in all the circumstances it would be dangerous or unsafe to allow the verdict to stand having reached the conclusion, as I have, that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged.

No complaint was made by the complainant until some considerable time after the offence was alleged to have taken place. The evidence against the applicant consisted solely of his confession which, even if voluntary, had unsatisfactory features about it. It was made only after the applicant had for some time protested his innocence. The first part of the confession itself contains an innocent version of events. Clearly not all that took place between Constable Jenkins and the applicant is contained in the formal record of interview and, having regard to the length of the record and the time taken to compile it, this observation more importantly extends to the conversation which took place after the compilation of the record had commenced. In particular, no mention is made in the record of interview of the nickname "Skinny Guts" nor was it mentioned in the evidence in chief of the Crown witnesses. In cross-examination, however, it transpired that the use of the nickname formed some part of the complainant's identification of the applicant and there was evidence from the applicant and his witnesses that the complainant did not refer to him by that name but that she did use the name in relation to her ostensible father. The alleged offence was denied by the applicant upon oath.

In these circumstances, the failure of the Crown to call the complainant as a witness was of major significance. No adequate explanation was given for that failure nor was any evidence called by the Crown by way of explanation. The jury could only reasonably have assumed that the evidence of the complainant would not have assisted the Crown case. See Blatch v. Archer [9] . Without evidence from her there was no evidence of the commission of any crime save for the evidence afforded by the applicant's confession. A reasonable jury must, I think, have required strong evidence to be led by the Crown to overcome the doubt necessarily engendered by the absence of any satisfactory explanation for the failure to call the complainant. A confession made by the applicant may have provided the necessary evidence had there not been a reluctance on the part of the applicant, maintained for some time, to admit the offence, had there not been an admitted incompleteness in the record of interview said to contain the confession, one omission being with respect to a crucial matter, and had the applicant not denied the alleged offence and the veracity of his confession on oath. In all of these circumstances, my conclusion is that the verdict was unsafe and that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. Notwithstanding that the jury apparently disbelieved the applicant, the probative value of the evidence led by the Crown was insufficient to establish beyond reasonable doubt a case against him consisting, as it did, entirely of a confession obtained in circumstances which did not put its reliability beyond question. This conclusion makes it unnecessary to consider the first ground of the application for special leave to appeal.

(1774) 1 Cowp. 63, at p. 65 [98 E.R. 969, at p. 970].

In my view, special leave to appeal should be granted and the appeal should be allowed. Since there would not appear to be any point in a retrial of the applicant, the conviction should be quashed.

High Court of Australia Gibbs C.J. Murphy, Brennan, Deane and Dawson JJ. Whitehorn v The Queen [1983] HCA 42

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