R v Silcock[2021] QDCPR 29

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 13 December 2019 the applicant was convicted, after trial, of two counts of rape and two counts of sexual assault.  On 5 June 2020 an appeal against the convictions was allowed and a re-trial was ordered in respect of each count.^[1]
2. [2]
   The applicant appealed on six grounds. The Court of Appeal, in allowing the appeal on one of those grounds, considered it unnecessary to determine four of the six grounds. A ground challenging the reasonableness of the verdict was dismissed.  The ground of appeal on which the applicant succeeded was:

“A miscarriage of justice occurred because of the way in which the appellant’s trial was conducted:

1.  that detailed matters were put to the complainant which were contrary to the appellant’s instructions; and

2.  …”

3. [3]
   In order to pursue that ground of appeal the applicant disclosed his statement and other instructions provided to his then legal representatives, thereby waiving the legal professional privilege that would otherwise have attached to the documents.  He was examined and cross-examined in the course of the appeal hearing, as was his father and both the solicitor and Counsel who acted on his behalf at trial.  Each testified as to matters which would have been privileged had the applicant not waived that privilege. None of the questioning touched upon factual issues raised in the trial.
4. [4]
   The applicant has been informed that the prosecution of the re-trial will be conducted by Mr Cook as the prosecutor, who appears for the respondent on this application, and the assigned legal officer who was also involved at the time of the first trial (“the prosecution team”).  Both have accessed some or all of the material filed by the applicant in the appeal hearing, a transcript of that hearing and other material that would have been privileged were it not for the waiver by the applicant. 
5. [5]
   Against that background the applicant applies for the following orders:

“1. An order that the criminal proceedings against me be temporarily stayed until such time as the Director of Public Prosecutions:

1.  Appoint a new legal officer and Crown prosecutor to conduct my re-trial; and

2.  That the prosecution team not previously have had access to, and undertake not to gain access to, material and information in respect of which legal professional privilege was waived for my appeal against conviction.

2.  An order pursuant to s 21A(6)(b) of the Evidence Act 1977 (Qld) that the video recording of the complainant’s evidence not be admissible at my re-trial.

3.  An order that the complainant give evidence in accordance with s 21A of the Evidence Act 1977 (Qld) on a date to be fixed.”

The application for a temporary stay

The applicant’s argument

6. [6]
   The applicant accepts that the prosecution team are lawfully in possession of the material which would otherwise be inaccessible to them due to the effect of legal professional privilege.  The privilege was waived in order to pursue the successful ground of appeal and the consequence is that the prosecution team possesses material it would not otherwise have access to.
7. [7]
   The applicant submits that he was effectively forced into waiving privilege so that he could pursue his appeal.  It is said that the decision was forced on him by the conduct of his previous Counsel at his first trial, contrary to his instructions, and so it is unfair that he must face consequences not truly of his own doing.
8. [8]
   It is further submitted that neither an undertaking by the prosecutor not to use the material nor recourse to the judicial discretion to exclude evidence if its admission would be unfair^[2] remedies the issue.  In either case, it is submitted, there remains the fact that the prosecution is in possession of material that it is not ordinarily entitled to access and that fact itself is a sufficient ground to diminish public confidence in the administration of justice.  The remedy, it is said, lies in the solution found in the line of authority including cases such as X7 v Australian Crime Commission^[3] and Lee v The Queen^[4] wherein prosecutions were stayed until a new prosecution team was appointed,  being one which had no access to the compulsorily obtained material.
9. [9]
   The applicant points to R v MG^[5] but accepts that the order there made differs from that sought here. The applicant also notes the earlier decision of this Court in R v McDougall,^[6] but accepts that the decision is not binding on me and concedes that the reasoning in that case is of no assistance here. Otherwise, the applicant cannot point to any precedent to support his argument, but emphasises what he says is the need to protect the integrity of the judicial system.  To that end he highlights that a stay is not a punishment of the prosecution but a remedy to avoid a miscarriage of justice.

Consideration

10. [10]
    There can be no doubt that the rationale for the existence of legal professional privilege has solid foundations both historically and in the practicalities of modern day litigation.^[7]  So, the importance of protecting a party to litigation from the use of legally privileged communication against them is obvious. However the privilege over the material here has been waived. Once the applicant waived privilege, the privileged material becomes material lawfully and properly in the hands of the prosecutor.

11. [11]
    It is beyond doubt that this Court has jurisdiction that stay proceedings before it in order to preserve the integrity of those proceedings and of the Court itself or to relieve a party from relevant unfairness in the conduct of the proceedings.^[8] Identification of blame or fault is not a pre-requisite for the granting of the stay. I have referred to “relevant unfairness” as not every unfairness will warrant the granting of a stay.
12. [12]
    In order to determine this application, it must first be decided if there is an unfairness and, secondly if there is, if it is of such a type and magnitude as to create an unfair trial, or create a perception of a relevantly unfair trial.  Although the prosecution’s possession of an accused person’s actual instructional statement and notes commenting on aspects of the prosecution case is unusual, and in that sense irregular, it does not in my view amount to a relevant unfairness.
13. [13]
    First, it must be borne in mind that just as every irregularity in a trial does not necessarily result in a miscarriage of justice,^[9] so too is it the case that not every deviation from the usual course of a trial will result in an unfair trial.  It has been observed that a stay will not be granted “simply because some difficulty in according perfect justice to the accused is apprehended”.^[10]
14. [14]
    As Deane J observed in Jago v District Court of New South Wales;^[11]

“The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.”

15. [15]
    It is not unknown for the prosecution to possess an account given by a defendant prior to his trial or re-trial, which account may or may not coincide with the defendant’s trial instructions.  Examples that readily come to mind are:

1.  where a defendant has provided a full factual account to police in an interview and;

1. the prosecution does not tender that account at trial;
2. the account is ruled inadmissible and therefore not tendered at trial; or
3. parts of the account are excluded from evidence;

2.  where defence representatives make a detailed submission based on the inability of the prosecution case to negative the defendant’s version of events, which is disclosed in the submission;

3.  where a defendant successfully applies to vacate a plea of guilty and discloses his instructions to support the application; and

4.  where a re-trial is conducted (either as the result of a discharged jury or from a successful appeal) and the defendant testified at the first trial.

16. [16]
    The applicant accepts that he cannot point to an instance where an order of this nature has been granted in these circumstaces, but maintains that factual scenarios can arise which require such an order to avoid relevant unfairness.  He contends this is such a case.
17. [17]
    As noted earlier, in aid of his argument he points to cases in the X7 line of authority, albeit by way of analogy.  In my view, that reliance does not assist his argument.
18. [18]
    One of the fundamental issues for determination in the X7 line of authority is the extent to which the relevant legislation permits the conduct of the examination and/or the dissemination of the transcript of evidence given.  That is because a compulsory examination abrogates well-established common law principles and hence a clear intention to abrogate that right is required – the principle of legality.  An adjunct to that principle is the companion principle that a person accused of a criminal charge cannot be compelled to testify as to the commission of that charge.^[12]  It applies only to a person who stands charged.^[13] 
19. [19]
    X7 turned on the fact that he had been charged before being compulsorily examined about matters relevant to the charged offence and therefore when he was subject to “the accusatorial judicial process”.^[14] That was not permitted by the rekevant legislation.
20. [20]
    In Lee v The Queen^[15] the appellant was compulsorily examined, after he had been charged, about matters relevant to his alleged criminality.  The whole of the Court held that the disclosure of the transcript of his examination, in circumstances when the governing legislation did not authorise its disclosure to the prosecution, altered his trial in a fundamental respect.^[16]  That was because as Sofronoff P observed in R v Leach:^[17]

“As appears from these passages, the crucial factor in the case was that the provision to the prosecutor of an accused’s evidence, obtained under compulsion and without the protection of any privilege against self-incrimination, was a departure in a fundamental respect from the requirements of a fair trial.”

21. [21]
    Here there is no legislative permission for, nor prohibition against, the use of the disclosed material.  However, the common law requires that type of material to be disclosed to the prosecution if the privilege is waived in the circumstances which arose, and practice favours that it be accessible for use at any re-trial.
22. [22]
    Further, his criminal trial had ended. The applicant was no longer subject to the accusatorial judicial process. Further, he had the protection of legal professional privilege if he wished to avail himself of it and so the disclosure of his account was not compelled. The decision to bring an appeal was entirely his including on a ground that, it can be assumed, ^[18] he must have been advised would necessarily mean that his instructions would be disclosed, and in the realization that they then may be used in any re-trial. 
23. [23]
    Although he describes the decision as a “Hobson’s choice”, it does not change the fact that it was a decision which was not compelled in the relevant sense.  Further, there were another four grounds of appeal unresolved by the Court of Appeal, which he apparently considered to be of sufficient merit to justify pressing on an amended Notice of Appeal for the purposes of that hearing.^[19]  He could have appealed without pressing this ground, but chose to pursue it.
24. [24]
    Mr Cook has given a personal undertaking not to use the material in the Crown case, but gives no such undertaking should the applicant testify or adduce other evdience.^[20] The applicant contends that this, or any, undertaking is unsatisfactory for two reasons. First, it is said that “one can’t unknow what one knows”^[21] and so even though the undertaking would be given in good faith, it cannot operate to stop a subconscious application of the material. Secondly, this form of undertaking leaves the applicant in a position of not knowing whether it would potentially be used against him were he to testify.
25. [25]
    The first response is reminiscent of the reasons why undertakings were considered insufficient in cases such as X7 and Lee v The Queen. However, the difference is that in those cases the prosecution were not entitled to be in possession of the material and there was a risk that unlawfully obtained material would be unintentionally deployed against the accused person. Here the material is lawfully in the prosecution’s possession and, in circumstances where I consider it can be used by the prosecution if otherwise appropriate, the undertaking is a benefit to the applicant.
26. [26]
    The second response is correct in so far as it acknowledges that the applicant must take that possibility into account in deciding whether or not to testify, but in my view that is the usual course of events where the prosecution is lawfully in possession of an account of the defendant which it does not tender in its case. The decision would be made in the context of the state of the law on the prosecution using such material in the defence case, such as Soma v The Queen, ^[22] and so it is not a free roaming right for the prosecution to use it as it may wish.
27. [27]
    Although the applicant contends that the protection offered by s 130 of the Evidence Act 1977 is insufficient, the discretion may be employed to alleviate relevant unfairness if it arises in the precise context of the re-trial, notwithstanding these reasons. It operates as a further form of protection to the applicant in the event of the improper use of the material in a manner not envisaged by these reasons.
28. [28]
    The applicant further submits that the temporary stay should be granted because “from a public perspective, the very fact that this body of material is available to the prosecutor would diminish public confidence in the administration of justice”.^[23]
29. [29]
    This submission is akin to that underlying an application for an injunction preventing a legal representative from acting for one party in civil litigation. In Grimwade v Meagher^[24] it was held that:

“The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.”

30. [30]
    That part of the test referring to a litigant having a choice of counsel is unlikely to ever have application to the prosecution in a criminal trial. In any event, it is of no weight in this matter.
31. [31]
    I agree with McMurdo J (as his Honour then was) when he observed in Pott v Jones Mitchell^[25] that the fair minded member of the public must be attributed with knowledge of the true facts of the matter, as they are known to the Court. In my view, once that fair minded member of the public is aware that the prosecution in a criminal trial may legitimately be in possession of an account of events from an accused person for a range of reasons, and that in the present trial it has occurred because of the informed decision by the applicant, there is no real suggestion that he or she might reasonably apprehend there is a relevant unfairness such as to bring the administration of criminal justice into disrepute and require the granting of a stay to remedy that unfairness.
32. [32]
    For those reasons, the applicant’s submission that a temporary stay must be granted cannot be accepted.

Orders concerning further evidence from the complainant

33. [33]
    The second and third orders sought by the applicant overlap considerably and can conveniently be considered together.
34. [34]
    In effect the applicant submits that the whole of the complainant’s pre-recorded cross‑examination should not be permitted to be replayed at the re-trial ordered by the Court of Appeal and that he should be permitted to cross-examine for the re-trial in order that his instructions can be properly put and his case tested.  He acknowledges it is regrettable that the complainant must again testify, and consents (or perhaps more correctly does not object) to the use of the pre-recorded evidence-in-chief on the hearing of the re-trial.  Without disregarding the oral submissions, the applicant’s position is neatly encompassed in the following written submission:

“The situation cannot be remedied by editing or by selective further cross-examination. The egg cannot be unscrambled. The Court of Appeal having found that the conduct of the Applicant’s counsel in the cross-examination of the complainant caused an unfair trial, a fair trial can only be had by that cross-examination being conducted by trial counsel now briefed on proper instructions and an informed trial strategy.”

35. [35]
    The respondent acknowledges that, given the basis that the Court of Appeal found that the miscarriage of justice occurred, some part or parts of the pre-recorded testimony must be excised. The respondent observes that it was only in putting the instructions specifically referrable to count 2 that Counsel strayed from his instructions, even though the Court held that the error infected the applicant’s chance of an acquittal on all counts.   It submits that the excision should be limited only to that part where the instructions were being put relevant to count 2.

Consideration

36. [36]
    The complainant was previously declared to be a special witness and her evidence was recorded prior to the first trial.  Section 21A(6)(b) of the Evidence Act 1977 makes that pre-recording admissible on the re-trial, unless the court orders otherwise.  The legislation provides no express guidance as to the relevant matters to be considered on an application of this nature but, in this case, it has been approached as an issue of fairness. 
37. [37]
    The offences were alleged to have been committed on 25 June 2017.  The complainant’s evidence-in-chief was recorded just over two years later, on 22 July 2019.  The cross-examination did not take place that next day as intended due to technical issues afflicting the courtroom.  It in fact did not occur for about another three months, namely on 17 October 2019. On that date the pre-recording was conducted before the same Judge as the earlier occasions, with the same defence Counsel appearing, but a different Crown Prosecutor appeared.
38. [38]
    It is apparent from the transcript that, by that later date, the complainant was, understandably, unsure about some of the details of events.  It can be safely assumed that her inability to recall specific detail will be even more prevalent now, roughly four years after the events occurred.  If this aspect of the application succeeds it can reasonably be expected that she will appear to be uncertain as to many of the matters about which she testifies, including matters that she was not unsure of some two years earlier. This may give the jury a false impression as to the reliability of her account, and would disadvantage the jury by not allowing them access to the more contemporaneous account.
39. [39]
    Senior Counsel for the applicant anticipated that he would be two to three hours in conducting that cross-examination, emphasising that the complainant would not be subjected to a whole day of cross-examination as she effectively was on the earlier occasion.^[26] This is a matter properly taken into account, but cannot be decisive.
40. [40]
    It is self-evident that a provision such as s 21A(6)(b) of the Evidence Act 1977 exists, in part, to reduce the impact on a special witness whose evidence was pre-recorded if and when a re-trial is ordered.  It is also obvious that it is desirable that a witness’ evidence be recorded as close as possible to the occurrence of the relevant events in an effort to obtain an account which is likely to be less prone to memory affected by the passage of time than if it were taken at a later point in time.  Those features are not a complete answer to the applicant’s submissions, because if they were it would be no reason to grant the court a discretion to order otherwise.  But it is a relevant consideration, and favours excising only those parts of the pre-recorded evidence as is strictly necessary.
41. [41]
    On the other hand, the issue must also be considered from the position of the applicant.  For immediately present purposes it can be accepted that at least some of the matters put to the complainant in compliance with Browne v Dunn must be excised as they did not follow the instructions then provided in respect of count 2. The applicant contends that the whole of the cross-examination must be performed afresh because it was all tainted by proceeding according to a trial strategy that the applicant was not properly advised about.^[27]
42. [42]
    Firstly, it must be noted that the appeal was allowed because Counsel failed to follow some of the trial instructions. It was not allowed because of the adoption of instructions for the purposes of trial which differed from those which were first given by the applicant. The basis for allowing the appeal has nothing to do with the vast majority of the pre-recorded cross-examination.
43. [43]
    Further, I have read the whole of the transcript of the pre-recorded evidence and the applicant’s instructional statement. Leaving aside some aspects of the complainant’s  recollection of events once they had returned to the applicant’s flat, there seems to me to be little in factual dispute and that which is in dispute is of little moment, other than of course the essential allegations, many of which the applicant denies. One further matter that does differ is the issue of whether or not the two kissed at a bar before returning to his flat.  This was not put to the complainant at the first trial as a result of a legitimate forensic decision, but Counsel may or may not wish to raise it for the purposes of the re-trial.
44. [44]
    A difficulty in reaching a conclusion on these two applications is that although I assume the instructional statement disclosed for the purposes of appeal contains the current instructions for the re-trial, I do not (and cannot) know that to definitely be the case.  In my view, fairness requires that the applicant be at liberty to put his case, as informed by the presumably provided advice as to the consequences of it, but at the same time allowing the jury to consider most of the complainant’s cross-examination given at a time significantly closer to events than is now the case, and hence when she is presumed to be less susceptible to a fading memory than if it was given roughly four years after the events.
45. [45]
    I do not accept the respondent’s submission that only that part of the cross‑examination which did not follow the then held instructions should be excised. To approach the issue on that basis would be to deny the reality of the fact that the re-trial will be conducted on a (presumably) different basis than at the first trial, and would also be to deny the applicant the forensic benefit of some continuity in the course of the cross-examination. The better approach is to excise all of that where the defendant’s case was being put to the complainant. Some other excision will be required to ensure that which is left makes sense.
46. [46]
    It will be obvious that different defence counsel appears on the latest stanza of the cross-examination, and that years have passed since that earlier cross-examination.  However, given that at least some further matters have to be put to the complainant, that passage of time would have been apparent regardless of the outcome of this application. The change of defence Counsel will not be as concerning as it may have been given the earlier change in the Crown Prosecutor. Suitable directions will be required in this trial, and would have been required even if the applicant had succeeded on his applications in full. 
47. [47]
    In my view that better approach is to permit the admission of all of the earlier cross-examination on the re-trial, other than that which must be excised. At the very least, Counsel will be required to put the case that is to be conducted on the re-trial. Further, cross-examining Counsel should be limited on this further occasion to those matters required to be put or suggested by the rule in Browne v Dunn as well as those areas where the re-trial instructions differ from the subject of the earlier cross-examination, and any matters necessary to give context to each of these topics.
48. [48]
    Given that neither I nor the trial Judge are or will be privy to the actual re-trial instructions, I am unable to put precise limitations on the boundaries of that cross‑examination, and it will be difficult to enforce at trial.  In my view, Counsel must be afforded latitude in the exercise of his or her judgment, but will do so in the knowledge that wholesale re-hashing of the complainant’s memory will have limited utility given her earlier, and presumably better, recollection will be before the jury.
49. [49]
    In my view, a fair resolution of the application – fair for both sides of the trial – is reflected in the orders to be made.

One further matter

50. [50]
    In his outline, Mr Cook complains that an application by the prosecution to exclude proposed evidence from an expert witness that the defence have notified an intention to rely upon remains outstanding. He seeks, in effect, an order excluding that evidence from the re-trial.
51. [51]
    The matter was not argued orally before me and the applicant/defendant has not responded to those submissions in writing. It is not clear to me if the defence do intend to rely on that expert at the re-trial or not. In those circumstances it would be imprudent of me to rule on the issue. It should be determined after a proper hearing of the issues.

Orders

1. The application for a temporary stay of proceedings is dismissed.
2. The application pursuant to s 21A(6)(b) of the Evidence Act 1977 is granted, but only to the extent that the following passages of evidence as reflected in the transcript of the pre-recording dated 17 October 2019 be excised;

1. Page 1-67 lines 9 to 37 inclusive

2. Page 1-69 lines 19 to 43 inclusive.

3. Page 1-84 line 42 to 1-85 line 31 inclusive.

4. Page 1-86 lines 11 to 46 inclusive.

5. Page 1-92 lines 19 to 35 inclusive.

3. The whole of the pre-recording of the complainant’s evidence conducted on both 22 July 2019 and 17 October 2019 is otherwise admissible.
4. A further recording of the complainant’s cross-examination for the purposes of the trial is to be conducted pursuant to s 21A(2) of the Evidence Act 1977, on the same conditions as previously ordered, on a date to be fixed and limited to matters referred to in paragraph 47 herein.
5. Liberty to apply if either party considers other passages of the complainant’s pre‑recorded evidence should be excised, consistent with these reasons, and on which agreement cannot be reached between the parties.