410 Prosecution Failure To Call Or Question Witnesses1

410 Prosecution Failure To Call Or Question Witnesses1

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4.10 - Prosecution Failure to Call or Question Witnesses1
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Scope
1.
This topic addresses the directions which should be given where
the prosecution fails to call a witness to give evidence at trial,
or fails to ask a witness a material question during the trial.
2.
Similar issues are addressed in the following topics:
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Defence Failure to Call Witnesses;
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Failure to Challenge Evidence (Browne v Dunn).
3.
The need for directions on these issues depends on:
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whether directions are sought; or
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whether there are substantial and compelling reasons for giving
a direction in the absence of any request (Jury Directions Act
2015 ss14-16). See Directions Under Jury Directions Act 2015 for
information on when directions are required.
Failure to Call a Witness
Obligation to Call Material Witnesses
4.
The prosecution alone bears the responsibility of deciding whether
to call a person as a witness for the prosecution (Apostilides v R
(1984) 154 CLR 563).
5.
The prosecution must call all witnesses necessary to unfold the
narrative of events unless there is a good reason not to do so (Whitehorn
v R (1983) 152 CLR 657; Dyers v R (2002) 210 CLR 285; Mahmood v
Western Australia (2008) 232 CLR 397).
6.
As the prosecution seeks the truth, it must call evidence
favourable and unfavourable to its case (R v Soma (2003) 212 CLR
299; R v Shaw (1991) 57 A Crim R 425; R v Glennon (No. 2) (2001) 7
VR 631).
7.
However, the prosecution does not need to call a witness if his or
her evidence:
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Is likely to be unreliable, untrustworthy or otherwise incapable
of belief (Whitehorn v R (1983) 152 CLR 657; R v Newland (1997)
98 A Crim R 455);
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Is likely to be unnecessarily repetitious, in light of the
number of witnesses available for the proof of the matter on
which they would give evidence (Whitehorn v R (1983) 152 CLR
657); or
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Relates to an issue which has been raised by the defence, and on
which the defence bears the onus of proof (e.g., mental
impairment) (R v Fitchett (2009) 23 VR 91).
8.
Previously, one of the factors the prosecution could consider when
deciding whether to call a witness was whether the interests of
justice required that it be able to cross-examine that witness
(see, e.g., Richardson v R (1974) 131 CLR 116). This was due to
the restrictions the common law placed on the prosecution’s
ability to cross-examine its own witnesses. As Evidence Act 2008
s38 now provides the prosecution with a greater opportunity to
cross-examine its own witnesses, this is no longer a reasonable
basis for refusing to call a witness (Santo v R [2009] NSWCCA 269;
Kanaan v R [2006] NSWCCA 109; Kneebone v R (1999) 47 NSWLR 450 per
Smart AJ).2
Section 43 direction
9.
Where the prosecution fails to call or question a witness without
providing a reasonable explanation, the defence may seek a
direction under Jury Directions Act 2015 s43 (a ‘section 43
direction’).
10.
This direction informs the jury that it may conclude that the
witness would not have assisted the prosecution’s case (Jury
Directions Act 2015 s43).
11.
This direction is a statutory replacement for the common law rule
in Jones v Dunkel (see Jones v Dunkel (1959) 101 CLR 298; Dyers v
R (2002) 210 CLR 285; R v Le-Gallienne [2004] VSCA 223).
When Should a Section 43 Direction be Given
Prerequisites
12.
A section 43 direction may be given if:
i.
A witness was available who could have given relevant evidence;
ii.
The prosecution could reasonably have been expected to call or
question that witness to give evidence;
iii.
The prosecution failed to call or question the witness;
iv.
The prosecution provided no satisfactory explanation for that
failure; and
v.
Counsel for the accused requests a direction or there are
substantial and compelling reasons for giving the direction
despite the absence of a request (Jury Directions Act 2015 ss12,
43; Police v Kyriacou (2009) 103 SASR 243).
Discuss Issue With Counsel
13.
Where the defence seeks a section 43 direction, the judge should
discuss the issue with the prosecution before charging the jury.
This will allow the prosecution to make submissions on why it was
not reasonably expected to call or question the witness, or why
there is a satisfactory explanation for not calling or questioning
the witness (see Jury Directions Act 2015 s43; R v OGD (1997) 45
NSWLR 744).
14.
This discussion will provide the judge with the information needed
to determine whether the statutory basis for the direction is
established (see Jury Directions Act 2015 s43. See also Dyers v R
(2002) 210 CLR 285; R v Heinze [2005] VSCA 124; R v Kneebone
(1999) 47 NSWLR 450).
15.
If the judge finds that the prosecution does not have a good
reason for failing to call a witness, he or she may ask the
prosecution to reconsider its decision (Apostilides v R (1984) 154
CLR 563).3 If the prosecution complies with the judge’s request, a
section 43 direction will not be necessary.
Reasonable explanations for failing to call a witness
The Witness is Likely to be Unreliable
16.
A direction should not be given where the prosecution has a strong
basis for considering the witness unreliable, untrustworthy or
otherwise incapable of belief (R v Newland (1997) 98 A Crim R 455;
Apostilides v R (1984) 154 CLR 563; Whitehorn v R (1983) 152 CLR
657).
17.
It is not enough for the prosecution to merely suspect the witness
is unreliable. There must be identifiable circumstances which
clearly establish unreliability (Apostilides v R (1984) 154 CLR
563).
18.
The prosecution should put forward the evidence on which it formed
the view that the witness should not be called (R v Kneebone
(1999) 47 NSWLR 450; R v Glennon (No 2) (2001) 7 VR 631).
19.
The mere fact that a potential witness has made contradictory
statements in the past is not a sufficient reason for failing to
call him or her (R v Shaw (1991) 57 A Crim R 425; R v Armstrong
[1998] 4 VR 533; R v Palmer [2000] VSCA 236).
20.
The fact that the prosecution expects the witness to be
unfavourable, or to give evidence that does not accord with the
prosecution’s case theory, is also not a sufficient reason for
failing to call a witness (Whitehorse v R (1983) 152 CLR 657; R v
Newland (1997) 98 A Crim R 455; R v Heinze [2005] VSCA 124; Dyers
v R (2002) 210 CLR 285; R v Kneebone (1999) 47 NSWLR 450).
The Evidence is Unnecessary or Irrelevant
21.
A direction should not be given if the witness’s evidence is
likely to be unimportant, cumulative or inferior to what has
already been adduced (Police v Kyriacou (2009) 103 SASR 243).
22.
The prosecution will also have a reasonable explanation for not
calling a witness where the unled evidence would simply have
supported the unchallenged evidence of another witness. The
evidence in question must have been:
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Potentially relevant to a contested issue (R v Dammous [2004]
VSCA 62); and
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Able to affect the question of whether or not the prosecution
has proven its case beyond reasonable doubt (RPS v R (2000) 199
CLR 620; Mahmood v Western Australia (2008) 232 CLR 397. See
also R v Louizos [2009] NSWCCA 71; HGA v R [2010] VSCA 114).
Other Reasons for Not Giving a Direction
23.
At common law, the prosecution has been held to have a good reason
for not calling a witness in the following circumstances:
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Where it did not know what evidence the witness would give
(e.g., because the police did not take a witness statement) (Gillan
v Police (SA) (2004) 149 A Crim R 354);
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Where the witness could not have been compelled to give evidence
(R v Reardon (No 2) (2004) 60 NSWLR 454);
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Where the witness had been deported and could not be subpoenaed
(Fonseka v R (2003) 140 A Crim R 395);
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Where the witness had indicated that he or she would not give
evidence due to a privilege under Evidence Act 2008 (R v Kessing
(2008) 73 NSWLR 22).
24.
These reasons are also likely to provide satisfactory explanations
for the purpose of the Jury Directions Act 2015.
25.
In some cases the complexity of the circumstances may provide good
reasons for not giving a section 43 direction. For example, in R v
Taufua [1999] NSWCCA 205 the court held that, in order for the
jury to determine whether the prosecution should have called the
relevant witness, the judge would have had to direct them about
matters such as the prosecution’s obligations to call a witness
under Apostilides, the potential unreliability of the witness and
directions under s32 of the Jury Directions Act 2015, and the need
to seek leave to cross-examine the witness under s38 of the
Evidence Act 2008. In such circumstances, it was seen to be
preferable to give an anti-speculation direction rather than a
section 43 direction (see also R v Smith [2000] NSWCCA 202).
26.
A failure by police to question a relevant person is not a
satisfactory reason for not calling the person. A prosecutor
cannot remain passive, leaving a failure by police to dictate who
should be called at the trial (Solis v The Queen [2018] VSCA 275,
[104]-[108]).
27.
Similarly, reticence of the complainant to identify a witness or
provide a witness’ contact details, or the fact that the witness
is overseas, are not satisfactory explanations for a failure to
call by themselves. It is not for a complainant to decide whether
a witness is important, and the availability of audio-visual links
means that living overseas does not stop a witness from giving
evidence (Jacobs v The Queen [2019] VSCA 285, [160]).
Content of the Direction
28.
Where a section 43 direction is required, the judge may direct the
jury that it is entitled to conclude that the witness in question
would not have assisted the prosecution’s case and that this
supports the defence case (Jury Directions Act 2015 s43; Jones v
Dunkel (1959) 101 CLR 298). In some cases, it will also be
appropriate to tell the jury that the prosecution failure to call
the evidence strengthens the defence case.
29.
The direction must only describe a permissible path of reasoning
to the jury. It must not require the jury to draw the inference
described (Nadarajamoorthy v Moreton [2003] VSC 283).
30.
The judge must not direct the jury that the missing evidence would
have contradicted the prosecution’s case or been unfavourable to
the prosecution. He or she may only tell the jury that the
evidence would not have assisted the prosecution (Nadajaramoorthy
v Moreton [2003] VSC 283; R v Allen & Anor Vic CCA 20/12/1994; R v
Buckland (1977) 2 NSWLR 452).
31.
The judge may explain any competing inferences that arise in the
circumstances of the case, including any innocent explanations for
the failure to call the witness (R v Jenkins (2002) 6 VR 81; R v
OGD (1997) 45 NSWLR 744; R v Glennon (No 2) (2001) 7 VR 631. See
also Apostilides v R (1984) 154 CLR 563).
32.
A judge may comment on the effect that the prosecution’s failure
to call a particular witness would appear to have had on the
course of the trial (Apostilides v R (1984) 154 CLR 563).
33.
If the prosecution fails to call a particular witness, but there
are good reasons for not giving a section 43 direction, it may be
appropriate to give an anti-speculation direction. See below for
further information.
Failure to Question Witnesses
34.
It is likely that section 43 also applies where the prosecution
fails to question a witness about a particular matter, when it may
be expected that the prosecution would ask about that matter (R v
GEC (2001) 3 VR 334; R v Martin [2002] QCA 443; Western Australia
v Coates [2007] WASC 307; Mahmood v Western Australia [2007] WASCA
101; R v Priest (2002) 137 A Crim R 133).4
35.
This means that a section 43 direction may be given if:
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A witness who was called could have given relevant evidence
about a particular matter;
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The prosecution could reasonably have been expected to question
the witness about that matter, but failed to do so;
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The prosecution provided no satisfactory explanation for that
failure; and
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Counsel for the accused requests a direction regarding that
failure.
36.
The need for this direction raises the same issues which are
discussed above regarding the prosecution failure to call the
witness.
37.
At common law, one case where it was considered appropriate to
direct the jury on the failure of the prosecution to question a
witness about a topic was where:
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The complainant’s credibility was the foundation of the
prosecution’s case;
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The matter that the prosecution did not ask the witness about
was central to the complainant’s credibility; and
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The prosecution had no reason for not asking the witness about
that matter (Western Australia v Coates [2007] WASC 307; R v GEC
(2001) 3 VR 334).
38.
The fact that defence counsel had the option to cross-examine the
witness about the relevant matter does not remove the need for a
direction. Defence counsel should not be expected to risk leading
prejudicial evidence in cross-examination because the prosecution
has failed to elicit all relevant evidence (R v GEC (2001) 3 VR
334).
39.
See “Content of the Direction” above for a discussion of matters
relevant to the content of a section 43 direction. If a section 43
direction is given in this context, modifications should be made
to reflect the fact that an inference is being drawn from the
prosecution’s failure to question a witness, rather than its
failure to call a witness.
Anti-Speculation Direction
40.
An anti-speculation direction may be given where:
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It is possible that the jury might think that a witness could
have been called by the prosecution to give evidence, or could
have been questioned about a certain matter, but was not;
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An adverse inference may not be drawn from the prosecution’s
failure to call or question the witness;
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Counsel for the prosecution has requested the direction, or
there are substantial and compelling reasons to give the
direction despite the absence of a request (Jury Directions Act
2015 ss12, 16; Dyers v R (2002) 210 CLR 285).
41.
In such cases, the judge may direct the jury not to speculate
about what the witness might have said (Dyers v R (2002) 210 CLR
285).
42.
The judge may also direct the jury:
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Not to speculate about why the witness was not called or
questioned;
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Not to place any weight on the failure to call or question the
witness; and
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To decide the case solely on the evidence presented at the trial
(see, e.g., R v Newland (1997) 98 A Crim R 455; Hugo v R (2000)
113 A Crim R 484; R v Holden [2001] VSCA 63; R v Caratti (2000)
22 WAR 527; HGA v R [2010] VSCA 114).
43.
If defence counsel has suggested that an adverse inference should
be drawn against the prosecution for failing to call or question a
witness, the judge should explicitly direct the jury not to draw
such an inference (see, e.g., R v Heinze [2005] VSCA 124).
44.
Where the prosecution does not call a witness because of doubts
about his or her reliability, it will generally not be appropriate
to tell that to the jury (see, e.g., R v Chimirri [2010] VSCA 57).
45.
As an anti-speculation direction and a section 43 direction are
contradictory, the two directions should not be given together (Dyers
v R (2002) 210 CLR 285).
1 This document was last updated on 17 February 2020.
2 It will usually be unjust to refuse the prosecution leave to
cross-examine a witness under Evidence Act 2008 s38 where it has
called that witness because of its duty to put all material evidence
(including unfavourable evidence) before the jury (Santo v R [2009]
NSWCCA 269; Kanaan v R [2006] NSWCCA 109; Kneebone v R (1999) 47 NSWLR
450 per Smart AJ).
3 As the prosecution alone bears the responsibility of deciding
whether a person will be called as a witness for the prosecution, the
judge cannot force it to call a witness. Although the judge has the
power to call a witness him or herself (and thus also avoid the need
for a section 43 direction), this should only be done in the “most
exceptional circumstances” (Apostilides v R (1984) 154 CLR 563).
4 In Dyers v R (2002) 210 CLR 285, the High Court referred to R v GEC
(2001) 3 VR 334, but did not need to decide whether the rule in Jones
v Dunkel extended to a prosecution failure to lead evidence from a
witness who has been called.
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