R v Silcock [No 2][2022] QDCPR 6

DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 13th of December 2019 the applicant/defendant, who I’ll refer to hereinafter as the defendant, was convicted of two counts of rape and two counts of sexual assault. He successfully appealed to the Court of Appeal; see R v Silcock (2020) 4 QR 517.
2. [2]
   The decision has its nuances but, broadly speaking, the appeal succeeded on the basis that counsel then appearing (not counsel appearing before me today) incorrectly put on behalf of the defendant an aspect of his instructions which related only to count 2, but which error deprived the defendant the fair chance of an acquittal on all four counts on which he faced trial. The order was for the conduct of a retrial.
3. [3]
   Consequently, the defendant brought an application, amongst other things, to excise those parts of the pre-recorded cross-examination of the complainant where instructions were put. This was a broader basis than the limited basis on which the appeal succeeded.
4. [4]
   At that hearing the prosecution accepted that there had to be some editing,but suggested it should be limited to a few words only, and only in respect of what was put concerning count 2, which was an allegation of oral rape.
5. [5]
   I heard that application and delivered judgment on the 11th of May of 2021. The matter is reported as R v Silcock [2021] QDCPR 29, but is not available for public consumption as it a pre-trial ruling.
6. [6]
   In essence, I ordered the excision of all parts of cross-examination where matters were formally put to the complainant and I ordered the excision of other matters in an effort, as far as possible, to maintain the context of the cross-examination. I refer particularly to paragraph 46 of my ruling. I also ordered that there was:

“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.”

7. [7]
   Subsequent to my ruling, and subsequent to an opportunity for Mr Silcock to formally put his case to the complainant in freshly conducted cross-examination, an order was made by Judge Farr that the pre-recorded evidence be edited in accordance with the orders I had made.
8. [8]
   Referring now to paragraph 206 of the unreported version of the Court of Appeal ruling at [2020] QCA 118 from the judgment of Justice Boddice, with whom Justices Morrison and Applegarth agreed, Applegarth J providing additional reasons, it was noted that the manner in which the conduct of the defence case was conducted had two consequences. The first was that the way in which matters on count 2 were put amounted to an admission of penetration, and the second was that it permitted the prosecution to make specific submissions as to the putting of specific matters on the basis they were based on instructions and allowed the prosecution to legitimately develop a criticism of the appellant’s account as to an evolving story.
9. [9]
   It can be seen particularly from that second aspect of the observations of Justice Boddice that the manner of conduct of the putting of instructions had a broader significance to the trial rather than just on count 2, however, it was said expressly in respect of count 2 only.
10. [10]
    My reading of the Court of Appeal decision was that, although the appellant had argued other parts of the cross-examination contributed to or established a miscarriage of justice, they were not dealt with as the court found it unnecessary to deal with those other submissions, given the finding it had made concerning the conduct in relation to count 2.
11. [11]
    The defendant now applies for the excision of a further passage of the pre-recorded cross-examination, relying on the liberty given to apply in my earlier reasons and which the defendant contends has the effect of putting instructions which should not have been put. It is accepted that the terminology is not such as to have formally put or suggested matters, but that is the effect of the questioning.
12. [12]
    Interestingly, the prosecution’s response is not to actually respond to the application made but to submit that, because of developments since my previous ruling, that ruling should be “revisited”.
13. [13]
    First, I note that that is not a response to the application actually made. Second, there has been no application formally made to reopen the ruling under section 590AA(3). Nonetheless, given the response by the prosecution and in the interests of dealing with the issue so that it does not remain lingering, I will treat the prosecution’s submissions as, in effect, being an application in that form. I do so recognising the submissions that have been made by the defendant that there is, in fact, no jurisdiction because no application has formally been brought.
14. [14]
    Subsequent to my ruling on 11 May 2021, the defendant elected not to further cross-examine the complainant, and so has not formally put specific instructions to her. That was, no doubt, a tactical decision made on the basis of advice from experienced criminal law practitioners. Whether there are any consequences of not formally putting instructions is a matter that will have to be judged at the end of the evidence; see Hofer v The Queen [2021] HCA 36.
15. [15]
    There can be no doubt that the special reasons required as a prerequisite to a successful application to re-open a previous pre-trial ruling can be based on matters that have occurred since the provision of the first ruling; see R v Dunning; ex parte A-G (Qld) [2007] QCA 176 at [23] in particular. But once the basis of my earlier ruling is properly understood – that is, that the excisions that I ordered were required on a broader basis than that which was found by the Court of Appeal to justify a retrial, and that they were required for a fair trial overall – the decision to not formally put a case does not affect the rationale of my earlier decision.
16. [16]
    I say that in full recognition of the fact that all submissions were made, and hence my ruling was given, in the expectation that further matters would be put, but it is entirely within the province of the defendant to make that tactical decision. The reality is that where evidence is pre-recorded and where an excision has been ordered to facilitate further cross-examination, it may mean that the earlier ruling has been given in ignorance of the ultimate outcome. That of itself does not, in my view, necessarily negate the effect of the earlier ruling.
17. [17]
    As I have noted, the decision to not further cross-examine the complainant may have ramifications, but restoring the majority of the excised portions would only restore the broader unfairness that my earlier ruling sought to eliminate, or at least to sufficiently mitigate.
18. [18]
    I accept that, with the benefit of hindsight, the basis for my ruling may have been clearer on this aspect. Nonetheless, I trust that these reasons have sufficiently illuminated that reasoning now. In my view, no special reason to justify the reopening of the earlier ruling is established.
19. [19]
    I think it is telling that, although this matter has been listed for trial twice since my earlier ruling, and the earlier communicated decision to not further cross-examination, the prosecution have not felt so aggrieved as to bring an earlier application to re-open my ruling. Even for today’s purposes there’s been no written application brought in the matter. It seems now to be an opportunistic response to an application brought by the defendant.
20. [20]
    Insofar as the application has been based on the prosecution’s submissions purportedly in response to the application before this court, I refuse that application.
21. [21]
    Turning my attention now to the actual application made by the defendant. I accept that at least some of the portion of the identified cross-examination is apt to be understood as the putting of instructions or suggestions. That it may be taken that way is perhaps highlighted by the very fact that no other matters are going to be formally put or suggested to the complainant in the form of the cross-examination placed before the jury.
22. [22]
    I accept – and indeed the prosecution broadly accepts - that it is appropriate that some excision occur. However, the parts sought to be excised in the express terms of the application before me are, in my view, broader than is necessary to give effect to my earlier ruling. The excision of the whole portion applied for substantially interrupts the context and the effect of the cross-examination that was conducted.
23. [23]
    It is my view that the excision only of the words “you would agree with me that” at transcript 3-62, line 44 are necessary to achieve the outcome of removing the appearance of instructions being put by the cross-examiner, whilst at the same time maintaining the context of that cross-examination. In my view, if edited in that manner, the edited passage would be properly understood by the jury as simply being counsel’s repetition of the complainant’s earlier evidence-in-chief, specifically at 1-17, line 8, without it being seen as actually being adopted by the defendant through instructions.
24. [24]
    I order that those words be excised from the transcript which had already earlier been ordered to be edited, as well as from the recording of that pre-recorded evidence. I will further make an order that the parties are at liberty to apply, once the editing takes place, to ensure that there is no relevant unfairness in the end product.