New South Wales Court of Criminal Appeal CITATION: McC v Regina [2007] NSWCCA 25 HEARING DATE(S): 2/2/07 JUDGMENT DATE: 14 February 2007 JUDGMENT OF: Spigelman CJ at 1; Bell J at 2; Howie J at 21 DECISION: Leave to rely on supplementary ground of appeal refused; appeal dismissed CATCHWORDS: Crown Prosecutor's obligation to call witnesses LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 CASES CITED: R v Apostilides (1984) 154 CLR 563 TKWJ v R [2002] HCA 46; 212 CLR 124 PARTIES: PA McC (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/434 COUNSEL: R Toner SC / J Sabharwal (Appellant) D Frearson SC (Crown) SOLICITORS: Tim Sharman (Appellant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0098 LOWER COURT JUDICIAL OFFICER: Morgan DCJ IN THE COURT OF CRIMINAL APPEAL 2006/434 CCAP SPIGELMAN CJ BELL J HOWIE J Wednesday 14 February 2007 PA McC v Regina Judgment 1 SPIGELMAN CJ: I agree with Bell J. 2 BELL J: On 13 October 2005 the appellant was convicted at a trial held before Morgan DCJ and a jury of (i) maliciously inflicting grievous bodily harm on TP with intent to do grievous bodily harm; and (ii) assaulting SP thereby occasioning actual bodily harm to her. He appeals against his convictions. 3 The two offences arose in the course of the same incident, which occurred on 2 October 2003. TP, a girl aged 17 years and her friend, SP, a girl aged 14 years were minding J and A, the children of the appellant and his estranged wife, D McC, at her home in Port Macquarie. They were attacked by a man who struck each around the head with a car jack. SP, who was hit outside the home, fell to the ground and feigned unconsciousness. SP saw the man force his way inside the house. TP was hit with the jack repeatedly in the head and face and suffered severe injuries. At the trial TP had no recall of the assault. SP was not able to identify her attacker. 4 It was common ground that the appellant had called at his wife's home at the time of the incident and that he had taken both of the children away from the scene with him. Some hours later he drove the children to the Port Macquarie Police Station and they were returned to D McC's care. The appellant was interviewed by the police. He claimed he arrived at the house to find SP lying unconscious at the front of the premises and that TP had already been injured when he entered the house. He had panicked and his first thought had been to remove his children for their own safety. 5 The appellant did not give evidence at the trial. He relied on the version given in his interview with the police. 6 There was no direct evidence of the appellant's guilt. The Crown case was a circumstantial one of considerable cogency. The appellant's children, J, a girl aged 10 years and, A, a boy aged 8 years were both inside the house at the time of the assaults. Both children were interviewed by the police and each asserted that the appellant had not been the assailant. J gave a detailed account of her observations, which was supportive of the account that the appellant had given in his interview. 7 On the hearing of the appeal the sole ground argued was a supplementary ground which was filed in court on 30 June 2006 when the appeal was first listed for hearing. It was framed in these terms: 1. There was a miscarriage of justice in that at trial the Crown refused or declined to call J McC and/or A McC who were eyewitnesses or potential eye-witnesses to the events inside the house and where the Crown had evidence that J McC told her mother "… it wasn't daddy but another man" and thus the applicant has lost a chance which was fairly open to him of being acquitted. 2. The point was not taken at trial and the appellant seeks leave pursuant to Rule 4 of the Criminal Appeal Rules. 8 The Crown Prosecutor who appeared at the trial deposed in an affidavit, which was read on the hearing of the appeal, to having asked defence counsel on the first, second and third day of the trial whether the defence required the Crown to call J and A. He said that he had deferred calling D McC until the position in this respect was clarified. On the third day of the trial, 7 October, defence counsel informed the Crown Prosecutor that he did not require the Crown to call the children. 9 It was not submitted on the hearing of the appeal that the Crown Prosecutor had refused or declined to call the children. It was acknowledged that counsel for the appellant at trial informed the Crown Prosecutor that he did not require either child to be called. Accordingly, the ground of appeal, as framed, must fail. Senior counsel for the appellant submitted that the failure to call at least J had nonetheless caused the trial to miscarry. To place these submissions in context reference must be made to the point in proceedings (as recorded in the transcript) when the question of whether J was to be called arose, and to certain evidence that D McC gave concerning the two children. 10 The question of whether J might be called as a witness was first raised as the result of defence counsel's indication that he wished to adduce evidence of a representation made by J to her mother, under s 65 of the Evidence Act 1995, because J was a person who was not available to give evidence. COUNSEL: There's some conversation that is attributed – there is some conversation between D McC and her daughter, J, and the material that I seek to elicit from her is the words: "During this time that J has told me it wasn't daddy but another man". I understand that the Crown will object to me leading that, and I submit that it is admissible as an exception to the hearsay rule; and if I rely on section 65, this section normally deals with the maker who is not available. This is the witness, J, that was 10 years old at the time. She may be 11 now. The Crown intended not to call her and I have not asked the Crown to call her. So for all intents and purposes, I submit she is not available to give evidence for that purpose (T 142.35-54). 11 There followed some discussion in which the Judge observed that it did not appear that J was a person who was not available within the meaning of that expression for the purposes of the Evidence Act. Defence counsel responded that J, "would fall within section 16 of the Act, dealing with competence and compellability". It may be, in light of the way the matter was further developed, that counsel intended to refer to s 18 of the Evidence Act - which confers on the child of an accused a right to object to being required to give evidence as a witness for the prosecution. The Judge stated: HER HONOUR: She can be called. Why can't she be called? Except, I note, from the mother's statement that she suffers from some type of autism. As children that might note (sic) them to be incompetent, I don't know. As it stands at the moment, she doesn't fall within the definition of unavailability as provided in the dictionary (T 144.9-15). Immediately following this observation it is noted that discussion took place between the Crown Prosecutor and defence counsel. Shortly thereafter, in the presence of the jury, the following evidence was elicited in chief from D McC: Q. Your children were 10 and eight at that stage? A. Yes. Q. Were they going to school? A. Yes, they were going to school. Q. Are they afflicted in some way with a disorder? A. They have Asperger's syndrome, high functioning autism. They have poor social and they have poor behavioural skills. They also have perception problems. Q. In relation to your son, having regard to your intimate knowledge of him, would he readily understand the concepts of truth and lies, the requirement to tell the truth in a court? A. That's a hard question to answer. They do understand what truth is and what's not truth; they just have a hard time knowing when it's appropriate and when it is appropriate to say the truth and not say the truth. Q. In relation to your son being required to come to a court and give evidence, as his mother do you think you could do that? A. No. Q. Your daughter is 11 now, isn't she? A. Yes, she is. Q. Similarly in relation to the concept of making a promise to tell the truth and being under an obligation to tell the truth, do you think she would understand those concepts? A. I think she would understand them; I don't necessarily believe she would follow them. Q. Is that because of her condition? A. Yes, partly. Like I said, it's perception, they have a hard time perceiving things that people tell them in relation to what's right and what's wrong. Q. In any event, the accused is their natural father? A. Yes, he is. Q. Do you think they would be able to cope with concepts of having a right to object to giving evidence and trying to press that right? A. Could you repeat the question? Q. Do you think they would be able to understand or have explained to them the idea that we wanted them to give evidence involving their father but they have a right to object to that and to make a decision not to give evidence? A. I don't know they would understand that concept but they won't talk about anything, they won't talk about it. (T 147.33-148.29.) 12 The appellant contended that evidence of the children's competence or reliability should have been explored in a voir dire hearing. The submissions in this respect at times appeared to conflate the two issues. In the supplementary written submissions filed on the appellant's behalf it was suggested that the evidence of D McC (extracted above) was evidence of the children's capacity to give evidence. It was noted that it had not been tested and there had been no other evidence as to the children's capacity (Supp WS (2)(d)). In oral submissions senior counsel submitted that the Crown Prosecutor ought not to have formed a view about J's reliability based on the evidence of D McC alone. In this connection he submitted that any assertion that J or A suffered from Aspergers' syndrome should have been tested in a voir dire hearing. 13 No issue arose at the trial concerning the competence of J or A to give evidence. It appears from the passage (extracted at [11] above) that the question of whether J's compellability to give evidence - over any objection by her - was obliquely raised by defence counsel in support of the submission that J was a person who was not available to give evidence for the purposes of s 65 of the Evidence Act. The question of whether J was to be compelled to give evidence for the prosecution was not explored since the Crown did not propose to call her, and the defence did not require her to be called. 14 The submission that the Crown Prosecutor should not have formed a view about J's reliability in the absence of medical evidence or the conduct of a voir dire inquiry should be rejected. The Crown Prosecutor is responsible for deciding which witnesses are to be called in the Crown case. There was no evidence on the appeal of the Crown Prosecutor's reasons for his decision not to call J or A, although it may be reasonable to infer that the mother's account that they both suffered from Asperger's syndrome was a matter that he took into account. A judge may question the basis of a prosecutor's decision not to call a witness, and may invite the prosecutor to reconsider such a decision at the conclusion of the Crown case: R v Apostilides (1984) 154 CLR 563 at 575. In this case no occasion arose for the Judge to inquire as to the Crown Prosecutor's reasons for his decision, much less to permit a voir dire inquiry into the sufficiency of the material to support the decision, since the defence was not seeking to have J or A called. 15 It was submitted on the appellant's behalf that notwithstanding that defence counsel did not require J (or A) to be called; the Crown Prosecutor had been under an overriding obligation to call J. The obligation was said to arise because J was an eyewitness to the assault on TP and although she was a young child she had been able to give a detailed and coherent account of the incident to the police within hours of its occurrence. In discharge of its duty of fairness the Crown was said to be obliged to place this account before the jury. The asserted duty is thus one that extended beyond calling J, and making her available for cross-examination (a fruitless exercise given that defence counsel did not require her) and required the Crown to adduce evidence from her of the representations made by her in her interview. Senior counsel acknowledged that in the event this had been done, the Crown Prosecutor would have been likely to apply for, and be granted, leave to question J as though cross-examining her pursuant to s 38(1) of the Evidence Act. The appellant might have had grounds for complaint had the Crown called J, against the wishes of his counsel, and adduced evidence from her that was unfavourable to the Crown and thereafter obtained leave to cross-examine her. 16 Defence counsel's decision, that he did not wish either J or A to be called in the Crown case, was a rational forensic choice: The two children had been in the appellant's company in the period between the assaults and the time when he attended at the Port Macquarie Police Station. There was a risk that if the jury did not accept that J had seen all that she claimed to have seen they would reason that she had been coached by her father. There was the risk that J may acknowledge as much in the course of evidence or that A's version may not match that given by J. Nothing in the principles enunciated in Apostilides, upon which the appellant relied, supports the contention that the Crown Prosecutor was obliged to call J (or A) in circumstances in which defence counsel did not wish either to be called. The contention that the Crown was subject to an overriding obligation to place J's version before the jury, notwithstanding the stance taken by the defence, is inconsistent with a recognition of the adversarial nature of the criminal trial process: TKWJ v R [2002] HCA 46; 212 CLR 124. 17 The Crown Prosecutor opened the case, telling the jury that SP would say that as she lay on the ground she heard the children saying, "Dad, is that you?" SP did not give evidence in those terms. She said that after the person who had struck her got the front door opened and went inside she had heard TP screaming. She heard the words, "go away and leave us alone" and then she heard the little boy saying, "leave her alone, that's my friend" (T 76.55). A little later in her evidence she said she had heard "the kids" saying "leave me alone", "leave TP alone", "leave us alone" and "that's our friend" (T 77.50-52). 18 Senior counsel contended that the Crown Prosecutor's assertion that evidence would be led that the children were heard to call out "Dad is that you?", in combination with D McC's evidence (set out above), may have led the jury to infer wrongly that any evidence given by the children would be adverse to the appellant. No application was made by defence counsel at trial arising out of the Crown's opening. This is unsurprising. The evidence was that the children were in bed at the time of the attack and that the house was in darkness. The assertion, which did not become evidence, that the children had called out "Dad is that you?" might be thought to be neutral on the question of the identity of the assailant. 19 The reference in the examination of D McC (extracted at paragraph [11] above) to the children's right to object to giving evidence against their father was obscure. The evidence, appears to have been directed to the question of the children's capacity to understand their right to object to giving evidence for the prosecution at their father's trial. As I have noted, no issue in this respect arose since the Crown did not intend to call them. In the event that it was proposed to call either child the question of compellability under s 18 was one to be dealt with in the absence of the jury. In the event, the evidence was led without objection. Its purpose may have been to provide an explanation for the fact that neither child had been called. The explanation included D McC's evidence that the children would not talk about the matter. It is not apparent that this evidence would incline the jury to reason that any account given by the children would be adverse to the appellant. No application was made by defence counsel for any direction arising out of this evidence or regarding the circumstance that the children did not give evidence. 20 A number of grounds of appeal, together with written submissions signed by the appellant's solicitor, were filed with his notice of appeal on 17 February 2006. On the hearing of the appeal senior counsel for the appellant did not press any of the original grounds of appeal. The appellant's challenge to his conviction was argued on the supplementary ground alone. This ground was expanded upon on the hearing in the respects that I have set out. The supplementary ground, as drafted, and as developed at the hearing, requires the grant of leave pursuant to r 4 of the Criminal Appeal Rules before the appellant may rely on it as a ground of appeal. For the reasons set out above, I would refuse leave to the appellant to rely on the supplementary ground and order that the appeal be dismissed. 21 HOWIE J: I agree with Bell J. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.