Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: KH v R [2014] NSWCCA 294 Hearing dates: 1 December 2014 Decision date: 01 December 2014 Before: Leeming JA at [1] and [43]; McCallum J at [41]; R A Hulme J at [42] Decision: 1. Leave to appeal be granted. 2. The appeal be dismissed. Catchwords: EVIDENCE - application by Crown to cross-examine unfavourable witnesses - advance ruling - Evidence Act 1995 (NSW), ss 38 and 192A - witnesses included persons named on indictment but not charged - whether appellable error in grant of leave to cross-examine - whether appellable error in judge inquiring, in presence of jury, whether witness aware of right to object to giving self-incriminating evidence Legislation Cited: Crimes Act 1900 (NSW), s 61J Criminal Appeal Act 1912 (NSW), s 5 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 38, 128, 132, 135, 137, 192A Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4 Lee v R [2009] NSWCCA 259 R v Le [2002] NSWCCA 186; 54 NSWLR 474 Category: Principal judgment Parties: KH (Applicant) Regina (Respondent) Representation: Counsel: G D Wendler (Applicant) V Lydiard (Crown) Solicitors: Van Houten Law Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/49416 Publication restriction: Prohibition on publication of any matter identifying or likely to lead to identification of complainant pursuant to s 578A Crimes Act 1900 (NSW). Decision under appeal Date of Decision: 2013-06-19 00:00:00 Before: Haesler DCJ File Number(s): 2012/49416 Judgment 1LEEMING JA: The appellant was found guilty of one count of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW), following a trial over some 6 days before a judge and jury of 12. The circumstance of aggravation was that the appellant was in the company of other persons. One of those other persons, Mr Luke Gallagher, was named on the indictment and is prominent in this appeal. At the time of the trial, he had not been charged; in circumstances explained below, he was called as part of the Crown case and cross-examined by the prosecutor, pursuant to leave granted under s 38 of the Evidence Act 1995 (NSW), as an unfavourable witness. The Crown also called the appellant's younger sister SH, and cross-examined her, pursuant to the same grant of leave. 2The cross-examination by the Crown of both of these witnesses was relatively brief (occupying seven and eight pages of transcript respectively) and was principally directed to putting to them what they had told police the day after the alleged assault. Each was then cross-examined by the defence. 3There were two other witnesses called by the Crown, who were also cross-examined as unfavourable witnesses, pursuant to the same grant of leave, and of which no complaint is made. 4The appellant appeals against his conviction, relying on the following two grounds: "GROUND 1 That the trial judge erred in law by granting the prosecution leave to cross-examine at large the witnesses Luke Gallagher and [SH]. Such leave and the circumstances in which it was granted altered the fundamental nature of the adversarial system of criminal justice. GROUND 2 That there has been occasioned to the appellant a miscarriage of justice by reason of the trial judge informing the jury about the circumstances of a grant of leave to cross-examine the witness Luke Gallagher and associating such leave with instructions concerning the privilege against self-incrimination." 5There is no appeal from the sentence of 6 years imprisonment with a non-parole period of 3 years, which was described by the sentencing judge as "towards the bottom of the range", and reflected a number of subjective factors which need not be recounted here. Leave is required because neither ground involves a question of law alone. Nevertheless, it is convenient to refer to KH as the "appellant". 6Having regard to the narrowness of the proposed grounds, the following abbreviated summary of the evidence at trial will suffice. The evidence of the complainant, Mr Luke Gallagher and SH 7The principal witness for the Crown was the complainant. She and her friend left school at around 2 o'clock on 13 February 2012, missing their last class. They arrived at a house where members of the appellant's family lived, one of whom was the complainant's friend's boyfriend. The appellant's younger brother DH, who was then aged 17, was living in a caravan in the backyard of a neighbouring house. The complainant said that the appellant, DH, Mr Gallagher (who usually stayed in the house on Monday to Thursday), and an older man came into the caravan. Her friend and her friend's boyfriend left, leaving her the only female in the caravan. 8On 13 February 2012 the complainant was two weeks short of her 14th birthday. The judge stated in his remarks on sentence that she was 6 ft tall and it was "conceded by her and it was obvious to those in Court that she could pass for a 16 year old". The complainant volunteered in her electronically recorded interview the following day that DH had told the other three men that she was 16 and that she had not disabused them of that. She accepted in cross-examination that she "let him believe that you were 16 when you weren't". 9The complainant said that Mr Gallagher held her down by her shoulders, and put his arm over her mouth, while each of the appellant and his brother had penile vaginal intercourse with her. She said they both used condoms. 10The complainant then left the caravan, and almost immediately afterwards phoned her friends and family and complained of the assault. She was examined by a doctor at Wollongong Hospital in the early hours of 14 February 2012, who found relatively minor injuries (a small tear or laceration in the vagina, and a bruise on the hand) which were consistent with her account. She participated in a recorded interview with the Wollongong Joint Investigation Response team on the morning of 14 February 2012, which was played to the jury, in which she recounted the foregoing events. 11In the week before the trial, the complainant gave a further interview to the police, in which she confirmed that she had previously exchanged messages with the appellant's brother on Facebook, including yes to his request for sex. She said: "Q. [S]o as far as you're aware do you think he would have thought you meeting up with him you were agreeing to have sex with him? A. Yeah but at that time he didn't like ask while we were there, he didn't like push me into anything like that. Q. OK. Did you have the intention of having sex with him when you said that you would? A. On Facebook at that time yeah I did but when I met up with him I didn't." 12Mr Luke Gallagher participated in an electronically recorded interview with police officers on the evening of 14 February 2012. He accepted that he was in the caravan with the appellant and DH on the previous day after school. He said, repeatedly, that the victim had said she was 16 years old. He denied laying a hand on her. He said that: "[The appellant] ended up having intimate sex with her. But ... [the appellant] assuming she was 16. We didn't realise she was 13 until later on that day, after she had left." 13SH started making a handwritten statement to police on 14 February 2012, which she did not finish and did not sign. She made a statement on 13 June 2013, the day before she was called as a witness in the Crown case. In her later statement, she said that the complainant had told her, immediately afterwards, that "I just had sex with your brother". There were other exculpatory statements, which were not found in the handwritten statement made at the time. The course of the trial 14There was no significant dispute at trial that the appellant had had sexual intercourse with the complainant. As is reflected by the offence on which he was indicted, the Crown did not contend that it was proven beyond reasonable doubt that KH believed that the complainant was under 16. The substantial issue at trial was consent. 15The cross-examination of the Crown witnesses by the defence was directed to whether the complainant had consented. The complainant gave evidence via closed circuit television, and was cross-examined. The appellant did not give evidence, as was his right. 16On the first day of the trial, 11 June 2013, in the absence of the jury, the Crown advised that it might seek leave to cross-examine witnesses of the Crown who, according to the Crown, were adverse. They included SH and Mr Gallagher. The Crown applied for an advance ruling under s 192A of the Evidence Act 1995 (NSW) to cross-examine under s 38 of that Act. Section 38 permits a party calling a witness who is "unfavourable" to cross-examine him or her. "Unfavourable" is broader than the common law notion of hostile: see Doyle v R; R v Doyle [2014] NSWCCA 4 at [292]. There was and is no dispute that SH and Mr Gallagher were "unfavourable" within the meaning of s 38. The defence opposed leave being granted. 17The primary judge ruled in favour of the Crown. His Honour gave reasons which summarised the contemporaneous evidence given by SH and Mr Gallagher, and explained that the Crown's application was to cross-examine those witnesses by putting the complainant's version of events and to explore with the witnesses why they had taken a partisan position contrary to what the Crown said was the truth of the complainant's allegations. His Honour recorded the submission from the defence that two of the witnesses proposed to be called by the Crown were, in effect, co-offenders, named in the indictment (ultimately, of these only Mr Gallagher was called). It was submitted that it would be wrong to grant leave to cross-examine those witnesses when a decision appeared to have been made that they not be prosecuted. 18The dispositive aspects of the judge's ruling were as follows: "As I understand the authorities, while the Crown have a higher duty than an ordinary litigant in civil proceedings they are entitled to present an account and they are entitled to present a case to the jury based upon the elements of the offence which they say they can prove. As I understand the interpretation of the word 'unfavourable' in s 38(1) Evidence Act, evidence which goes contrary to the elements of the offence which they have chosen to prove would ordinarily be regarded as unfavourable to the Crown case. Simply because evidence is inconsistent does not mean the Crown should refuse to call a witness. The law does not preclude them in a proper way testing those witnesses accounts by putting to them the version which supports the elements of the offence. It is also entirely appropriate that if such a suggestion is put that the Crown be entitled to explore with the witness why they may have taken a partisan approach. That seems to be the substance of almost every case which has considered s 38 Evidence Act, a line of authority which appears consistent with the terms of the section itself. Notice has been given and there seems to be no fundamental unfairness in what is proposed by the Crown. I use that term 'fundamental unfairness' because it is not for me or in fact the Director of Public Prosecutions to make a determination as to where the truth lies, it is for the jury; a properly instructed jury having had evidence properly tested before it is the tribunal which our law has fixed to determine ... matters such as this. In the circumstances while this is a preliminary ruling and can be revisited particularly if new issues arise, it does not appear to me to be fundamentally unfair or wrong or contrary to the definition of or my understanding of the term unfavourable in s 38(1) Evidence Act to allow the Crown to put the complainant's version of events to each of the witnesses nominated and I propose to grant leave in the terms sought. That having been said it is a matter for you Mr Crown as to what witnesses you should call. It is not for me to determine that one way or the other. You have spoken to them or someone has spoken to them. I think I should possibly add that that someone is potentially a co-offender and may subsequently be charged or is a matter that might need s 128 of the Evidence Act be considered, but it does not of itself, despite the position carefully put by Mr Kellaway, provide a substantial basis for the refusal of leave." 19What was contemplated by that advance ruling occurred in relation to four witnesses called by the Crown. Leave 20The Crown supplied a lengthy submission maintaining that leave was required under r 4 of the Criminal Appeal Rules (NSW), because the cross-examination of Mr Gallagher and SH occurred without further objection from the defence. I am doubtful that r 4 applies to proposed ground 1 of the appeal. The defence opposed the grant of leave to cross-examine pursuant to s 38 at trial. I doubt that it is necessary, in a case such as this, for there to be a second objection to the precise course taken at trial, when there had previously been a formal, fully argued objection taken in globo to that course. If I am wrong about that, I would in any event grant leave under r 4 as well as under s 5 of the Criminal Appeal Act 1912 (NSW) to raise the matters dealt with in the written submissions. 21However, in my view leave should not be granted to raise a submission only made orally, which was that the Crown had "deliberately manipulated" the process to enable evidence to be adduced from Mr Gallagher. That was not a submission that was made below, nor so far as I can see was there a basis for it to be made either at first instance or on appeal. Ground 1 22The appellant submits that before leave was granted under s 38, the Court was: "mandated to consider the application of ss 135 and 137 and 192 of the Act. This was especially so in the circumstances of the appellant's trial because the prosecution was attempting to transmogrify the adversarial process by effectively running its case through cross-examination according to a total embrace of the complainant's version of events. The fairness of permitting the prosecution to conduct its case by cross-examination should have been a significant consideration within s 192(2)(b) (c) and s 135 (a) (b) of the Act." 23With this I cannot agree. Section 38(6) identifies two mandatory considerations: notice and "the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party". No complaint is made of a failure to have regard to either of these matters. 24The ruling was an advance ruling under s 192A. It was sought and obtained prior to any evidence being adduced. Sections 135 and 137 only apply when evidence is adduced: see R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [87]. It follows that they were not then applicable. It was of course at all times open for the defence to revisit the ruling, in the event that the matters on which it was based altered during the course of the trial. Indeed, the trial judge said in terms that his ruling "can be revisited particularly if new issues arise". It was also at all times possible for the defence to object to any question when Mr Gallagher and SH were giving evidence. 25The appellant correctly submits that s 192 applied. However, it is quite plain from the submissions and the ruling that questions of fairness were at the forefront of his Honour's mind when leave was sought and granted. 26His Honour was, with respect, correct to conclude that there was "no fundamental unfairness" in what was proposed by the Crown. In substance, what occurred was that the Crown put to witnesses whom it felt obliged to call as part of its case what they had told police the day after the event where that was inconsistent with their evidence in chief. It is plain from what occurred that the Crown anticipated that those witnesses, who on any view were close to KH, might depart from their statements when giving evidence; hence the advance ruling. 27It is true that the Crown squarely put to Mr Gallagher and to SH that they were lying in order to assist KH. Save for a small number of particular questions to which objection was taken in a conventional way, there was no complaint during the course of the trial to the Crown's cross-examination. Following the completion of their evidence, the defence cross-examined each of Mr Gallagher and SH. 28What occurred was precisely what was contemplated by the Act. The primary submission advanced on appeal, that what occurred fundamentally altered the adversarial process, must be rejected. It remained for the Crown to prove the elements of the offence beyond reasonable doubt. In doing so, the Crown availed itself of the mechanism provided under s 38. The trial judge acceded to the application, in a way which does not disclose any error, let alone appellable error. 29A separate aspect of this ground, which was advanced at first instance, was the fact that Mr Gallagher was named on the indictment and had not been charged. It was said on appeal that s 38 was being used: "as a substitute and procedural vehicle to avoid the shield of compellability of a person criminally associated with the very offence the subject of the trial. This distorted the legal nature of the adversarial process." 30There is nothing in this supplementary submission. The fact that Mr Gallagher was named on the indictment gave rise to questions arising under s 128 which are addressed below. The submission resembles that rejected by this Court in R v Le at [87]; there is no reason to think the jury would have ignored Mr Gallagher's answers to the extent that they were favourable to the appellant (which they were). However, it was also open to the jury to reject those answers (which they must have done, having regard to the verdict). That gave rise to no unfair prejudice. As was pointed out in R v Le, any prejudice which was curable could have been cured in the summing up, but counsel for the accused neither objected nor sought a jury direction. I do not see how anything material to s 38 turned on the fact that Mr Gallagher was named on the indictment. Ground 2 31The trial judge explained to the jury that he had given leave to the Crown to cross-examine Mr Gallagher. His Honour did so concisely and neutrally. There is no difficulty in what his Honour did in the terms identified by Grove J in Lee v R [2009] NSWCCA 259 at [38]. Indeed, counsel for the appellant conceded that it was what was subsequently said in relation to s 128 that drove this proposed ground of appeal. 32His Honour then asked Mr Gallagher if he had any legal advice about his rights, which was answered "no". His Honour then said that if he was asked a question and believed that his answer might make him liable to criminal prosecution, he could object. He added: "If you do make an objection there are some things that I can say and do which might protect you to enable the truth to be properly told by you ... So if at any stage you believe that your answer to a question might make you liable to criminal prosecution then please stop and ask and I'll have to send the jury out and we'll deal with that." 33Subsequently, Mr Gallagher did not give any answer which might incriminate him, and there was no occasion for s 128 to be explained to him. 34It was submitted that these statements, made in the presence of the jury, were: "inextricably connected to any potential preliminary question pursuant to s 189 of the Act. The inference the jury would inevitably have drawn from his Honour's statements was that unless the witness objected to questions, in particular questions by the prosecutor implicating the witness in the crime against the complainant, and availed himself of the Court's offered protection, the truth could not 'be properly told' by the witness." 35The short point is that the inference that the truth could not "be properly told" absent a s 128 certificate being provided is not available. The exchange between the trial judge and Mr Gallagher was a necessary anterior inquiry to that required by s 132 of the Evidence Act. Section 132 imposes an important obligation upon the Court (and, indirectly, upon the parties to litigation): "If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision." 36In the circumstances of this case, there was no appellable error in the trial judge taking the course he did at the outset of the cross-examination by the Crown, although it will be ordinarily preferable for those questions to be asked in the absence of the jury. 37The passage to which objection is taken was preceded by two important exchanges. First, the primary judge reconfirmed that the defence could object if the cross-examination went beyond the leave granted ("that means you can object if there is a departure from that"). Secondly, the Crown said that there was "possibly" a chance that Mr Gallagher would answer in a way which gave rise to questions of self-incrimination. However, he said "I don't anticipate that happening". That expectation turned out to be correct. 38The position therefore was this. There was a chance, estimated to be small, that Mr Gallagher might be asked and might answer questions such as to attract the privilege against self-incrimination. It was open to his Honour to inquire at the outset whether Mr Gallagher was aware of his rights, and to explain in general terms their nature before the issue became acute (in which case the jury would have to retire while advice was given, which might have a much more prejudicial effect). It is plain that his Honour was concerned to ensure that Mr Gallagher was treated fairly, as well as the appellant. 39Once again, the fact that there was no unfair prejudice from the course taken may be confirmed by the fact that no objection was taken by the defence to what occurred at the time. 40For those reasons, I propose that there be a grant of leave, but that the appeal be dismissed. 41McCALLUM J: I agree with Justice Leeming. 42RA HULME J: I also agree. 43LEEMING JA: The orders of the Court therefore are: 1. Leave to appeal be granted. 2. The appeal be dismissed. ********** 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. Decision last updated: 10 December 2014