VP v R [2021] NSWCCA 11

VP v R [2021] NSWCCA 11 · Read the judgment on AustLII

Catchwords: Prosecutor’s duties – requirement to call witnesses

In this decision the Court of Criminal Appeal (‘CCA’) has held that if a defendant remains silent until the end of a trial about the prosecutor’s failure to call witnesses, they risk the appearance that it was a forensic decision – and that may impact on whether the failure will amount to a miscarriage of justice.

The applicant was convicted following a judge-alone trial of 16 sex offences. The offences happened in a three-bedroom Housing Commission home, housing a total of nine people – specifically, in the lounge room, in which four people would regularly sleep, amongst them the complainant and the applicant (who was the complainant’s uncle).

Relevantly to this summary (which only deals with some of the grounds of appeal), at trial the Crown did not call some of the other house members. Those house members, so the argument was pressed on appeal, may have been able to give relevant evidence as to the unfolding of the narrative. Statements had not been taken from those witnesses, but by the time of the appeal two of them had provided affidavits to the effect that they had not seen any relevant misconduct by the applicant towards the complainant. Amongst other arguments, the applicant pressed that it was unfair of the Crown to have failed to call those witnesses, such that the trial miscarried.

It was also argued that the trial judge had failed to give herself proper direction as to the relevance of the evidence not called by the Crown – the so-called Mahmood direction. That is a reference to the decision of Mahmood v State of Western Australia (2008) 232 CLR 397. A ‘Mahmood direction’ (at least as used in this context) commonly refers to a direction that the failure of the prosecution to call particular evidence (or particular witnesses) may be taken into account by the decision-maker (here, the trial judge, but commonly the jury) in determining whether the prosecution has proved its case beyond reasonable doubt. Here, the applicant (belatedly) added a ground criticising the direction the trial judge had given herself on this topic, and submitted that the trial judge had failed to explain how she took it into account such that it amounted to no more than an empty incantation.

By majority (McCallum JA, N Adams J agreeing; Campbell J dissenting), the CCA dismissed the appeal.

Whilst the responsibility of the Crown to call all relevant witnesses is sometimes described as a ‘duty’, it is not a duty owed to the accused, breach of which entitles the accused to a new trial. The circumstances surrounding the decision not to call a witness will be important, but the establishment of a breach of the prosecutor’s duty is neither necessary nor sufficient to interfere with a verdict; a miscarriage may result from the absence of a material witness even where the Crown is blameless (at [42]). The question is to be determined by reference to the course of the proceedings as a whole, and that may include consideration of the manner in which the accused conducted his or her defence (at [44]). It follows that the existence or absence of any expectation leading into the trial that the witness would be called by the Crown may be important, especially in the case of a witness who is not clearly central to the unfolding of the narrative (at [45]).

Here, no statements were obtained from the relevant witnesses, and this was not a case where there was a disappointed expectation based on the brief served that the witnesses would be called by the Crown (at [53]). In this case the evidence of the family members taken at its highest could not exclude the possibility that the offences occurred. The most they could do (assuming they said they did not see relevant misconduct occur) was to provide the basis for a submission that the complainant’s evidence was unlikely to be true because it was likely the family members would have seen something if the offences occurred (at [55]).

Defence counsel had received written notice of the Crown’s decision not to call the witnesses. They also knew what evidence the witnesses could give and (because the Crown had served subpoenas on them) they were present at the first day of the trial. In the absence of any response to the prosecutor’s decision not to call the witnesses, that silence had the appearance of a forensic decision by trial defence counsel (at [60]). Having remained silent on the issue in the face of the Crown’s pre-trial correspondence and throughout most of the evidence, the first time counsel raised the absence of the witnesses was during the cross-examination of the officer-in-charge, who was the second-last witness in the Crown case. Instead, counsel made submissions based on Mahmood (at [66]).

Importantly, the majority did not accept the submission that it was incumbent on the Crown to call the witnesses ‘regardless of whether or not the accused asked for them’ (at [61]). Given the limited value of a witness who says they did not see an offence in circumstances where the offence could well have been committed without their seeing it, a decision to seek a Mahmood direction rather than seeking to have the family members called may well have been a good tactical decision. Either way, the consequence was that the applicant had failed to establish a miscarriage of justice arising from the Crown’s alleged failure – and that was all the more so given that the Crown case implicitly accepted that nobody had witnessed the offences described by the complainant (at [69]).