#7517 - Witnesses And Testimony Evidence - Evidence and Criminal Procedure

In criminal proceedings, the Crown alone is responsible for deciding who is to be called as a crown witness. The crown, as they have the burden of proof, decides which witnesses will be called to help discharge that burden

Calling a witness

The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the crown.

Has the witness not been called?

The Crown is obliged to call witnesses that are material to the case and if they don’t do this the trial may be unfair (R v Aposilides).

If a certain witness has not been called by the crown, the trial judge may, but is not obliged, to question the prosecution in order to discover the reason which led to the prosecutor to decline to call a particular person (s11). He is not called upon to adjudicate the sufficiency of such reasons. The trial judge may make such comment as he then thinks to be appropriate regarding the effect of the failure to call such witness.

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The failure of the crown to call a witness will only be grounds for setting aside a conviction if on the whole it is seen to give rise to a miscarriage of justice

R v Apostilides (1984) 154 CLR 563 (extracted in Kneebone)

Facts: This case concerned a sexual assault prosecution in which the prosecution refrained from calling two witnesses present with the complainant and the accused just prior to the alleged sexual assault.

Held: All the propositions above were founded in this case.

R v Kneebone (1999) 47 NSWLR 450

Facts: Kneebone was on a charge of sexual assault. The complainant was the daughter of Kneebone’s defacto wife. It was alleged that on the day in question, the complainant who was only 14 years old at the time, arrived home early from school. Kneebone questioned why she was early (she was wagging school) and sent her to her room. He later went up to her room, called her a lying scrag, hit her so her nose bled and then choked her. It was alleged that Kneebone sexually assaulted her and only stopped when the complainant’s mother who was standing at the door told him ‘that’s enough’. Photos were taken and she reported to the police the bashing, but made no mention of the rape. In late 1996 the complainant told her foster mother about the rape, she was medically examined in 1997 and trial took place in 1998. The mother in an affidavit stated that she never saw the appellant having a sexual relationship with her daughter nor did she go into her daughters room and see them. Kneebone denied the assault. The mother attended the trial and was ready to be called by a witness but neither side called her. The prosecution asked the defendant if they were going to call her but later decided that they would not call her as they believed her evidence would be unreliable. The defence did not call her

Held: Grag James J with whom Spigelman J agreed referred to the propositions laid down in R v Apostilides. This case upheld that it is up to the prosecution to act with fairness and has the objective of establishing the truth. If the crown fails to call a witness this may result in a miscarriage of justice. There are often competing interests between the strong prosecution of the matter and the fairness of the matter, however it is not an adequate basis to conclude that the witness is unreliable, merely because the witness’s account does not accord with some case theory which is attractive to the prosecutor.

Has the defendant’s failed to give evidence – criminal proceedings

A defendant is not obliged to give evidence or call evidence in their defence and nothing adverse to them can be inferred from their election to do or not do what they have done.

Where a defendant chooses not to testify themselves or to call a witness for their defence, the trial judge can make a comment about that, pursuant to Section 20. Section 20 requires a trial judge to make a comment to the jury that they can not adversely infer from the failure of the accused to give or call evidence

The trial judge however is not to comment in such a way to suggest that the failure to call the witness was because the defendant knew they were guilty.

R v Dyers (2002) 210 CLR 285

Facts: Appellant accused of indecently assaulting 13-year old girl on morning of 28th July 1988. The Appellant was the leader of an organisation/cult known as Kenja. Some of the processes within the cult included the participation in an ‘energy conversion session’. It was alleged that on the day in question, the daughter of a member was in one of these sessions and was sexually assaulted during the session by the appellant. The appellant claimed that he was not with the claimant at the time. Appellant’s appointment diary was entered into evidence and did not reveal a meeting with the complainant. It did show meetings with several other persons, one being Ms Wendy Tinkler, none of whom were called at trial. The trial judge made a comment to the jury to not infer anything from the absence of this evidence. The trial judge also held that it was for the crown to prove the guilt of the defendant beyond a reasonable doubt that the crime in issue had occurred

Held: This comment contravened Section 20 as it suggested that the failure of the defendant to call the evidence was a suggestion of the defendants guilt. The trial judge should not direct the jury that they are entitled to infer that the evidence of those not called would not have assisted the prosecution nor are they to speculate about what might have been said in that evidence.

Jones v Dunkel (1959) 101 CLR 298

Facts: The litigation involved a motor vehicle accident on 15 January 1953 on the Hume Highway near Berrima in southern NSW. The plaintiff was the wife of one Jones who was killed in the accident. She sued pursuant to the Compensation to Relatives Act 1897 (NSW). The driver of Dunkel’s vehicle survived but had no useful memory of the accident.

Jones had been driving his International truck in a northerly direction towards Sydney. Dunkel had been driving his truck in a southerly direction. It was dark and the road was wet. The Hume Highway in 1953 was a winding road. The road was about 28 feet wide, with a 20 feet wide bitumen strip surrounded by two dirt verges each 4 feet wide. The dimensions of the trucks were also in evidence.There was, clearly enough, a collision between the trucks as they drove towards each other in opposite directions. Dunkel’s vehicle must have turned around completely on impact or shortly thereafter for it was found south of Jones’ vehicle, on the same side of the road and facing in the same (generally northerly) direction. Dunkel’s truck was badly damaged across its front and its nearside door had been torn away and was missing. Jones truck was damaged on the offside. The mudguard of the front wheel was torn away and pushed back against the offside door. The windscreen was broken and the cabin and the steering wheel were pushed back towards the front seat. The trial was before a jury. Dunkel was not called to give evidence. The controversies in the case were whether the proved facts furnished an inference of negligence (an inference that Dunkel was on the wrong side of the road at the time of impact) and the significance, if any, of Dunkel’s failure to give evidence.

Held: The trial judge here said that the jury could draw an adverse inference from this. This was held in the High Court to be a valid direction. This was the position in civil cases which later extended to criminal cases. This is still valid law in civil cases where there are juries (this is often rare)

RULE: The rule in Jones v Dunkel says if party does not call evidence which would support their theory of the case, adverse inference can be drawn from the absence of evidence.

Weissensteiner v The Queen (1993) 178 CLR 217

Facts: The accused sought to exercise the right of silence at his trial for the murder of two travelling companions. The two disappeared and were never to be seen again. The accused had a number of their items however he did not offer an alternative explanation as to what had happened to them. No evidence was adduced in his defence.

Held: The trial judge told the jury that an inference of guilt ‘may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which can be easily perceived must be within his knowledge’

The High Court by a majority of five to two upheld this direction, deeming it lawful within the context in which it was delivered. This case pre-dates the evidence act, thus does not deal with Section 20. This case remains good law, however in the narrow circumstance where the accused is the only person to offer an alternative explanation.

RPS v The Queen (2000) 199 CLR 620

Fats: The accused was charged with sexual offences of carnal knowledge of and sexual intercourse with his daughter over a 10 year period, whilst she was aged from 4 to 14. He was convicted of 4 counts of sexual intercourse. It was a word against word case: no expert evidence and no circumstantial evidence. The mother and the complainant gave evidence. The mother recounted a conversation with the accused in which he had said that everything that the daughter had told her was true, except for the story of actual sexual intercourse. The accused chose to call evidence, but not to testify. At the trial the judge directed the jury that ‘they could treat the statements made by the [accused, as recounted by the mother] as an admission of some of the acts’. He also directed the jury that the lack of testimony from the...