R v Peros

This interesting decision involved a ruling by the judge inviting the prosecution to call a critical witness in a murder trial, and failing that, to call the witness himself. The judge considered the relevant principles in such a case, including that the fact that the witness had previously lied on oath is not automatically a basis for not calling the witness. In the result, his Honour took the rare step of calling the witness himself, as the prosecution did not call him, and the interests of justice required that he be called.

Henry J

21 March 2017

In this matter, the accused, who was alleged to have murdered the deceased, sought a ruling prior to the prosecution’s opening that Henry J invite the prosecution to reconsider its decision not to call a witness, Mr Blackman, and in the alternative, that if the prosecution would not call Mr Blackman, that his Honour call the witness. [1]. His Honour indicated in this ruling that he intended to invite the prosecution to do so, and if it did not, he would take the exceptional step of calling the witness himself. [1].

Although on one view the second limb of the application was premature, his Honour decided to address it to “give some certainty to each side” and “[i]n light of the unfairness of the defence’s disadvantage in conducting their case without knowing whether Mr Blackman [would] be called”. [2], [7]. This was subject to two qualifications: (i) that the ruling would become academic if the prosecution were to change its mind and call Mr Blackman, and (ii) that the ruling would be subject to review at the close of the prosecution case to confirm that the evidence led was in conformity with the facts upon which the ruling was based. [8]–[9].

The evidence of Mr Blackman concerned a hypothesis consistent with the innocence of the accused, namely, that a man other than the accused, Mr Daniel, was the killer. [23]. In previous witness statements Mr Blackman said that he had overhead a conversation in which Mr Daniel admitted he was the killer. [19]. However, the prosecution decided it was no longer going to call Mr Blackman because he was an “admitted perjurer” and “claimed in earlier proceedings that he previously lied in incriminating Mr Daniel in witness statements”. [23].

Henry J referred to R v Apostilides (1984) 154 CLR 563, 575, where the High Court set out five propositions relevant to the calling of witnesses. [10]. His Honour, in particular, noted the fifth proposition that “[s]ave in the most exceptional circumstances, the trial judge should not himself call a person to give evidence”. [10]. However, equally, his Honour noted the further observation by the High Court in Apostilides (at 576) that “[a] refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare”. [12].

In considering the prosecution’s stance, Henry J noted that the “mere fact that someone has, in the history of a case, lied on oath in relation to relevant matters in the case may be – but it seems to me would not automatically be – a basis for not calling the witness”. [86]. His Honour then noted that it is “not at all uncommon” for the prosecution to call witnesses who had lied in their statements at first, but then admitted what the prosecution seeks to assert was the truth. [86]. Similarly, while less common, his Honour noted that it is “certainly not rare” for the prosecution to call a witness who admitted what the prosecution seeks to assert is the truth in their statement, but later disowned it in addendums or at committal. [87]. In such cases, the prosecution “calls such witnesses anticipating they will succeed in having them declared hostile and in getting admitted as a prior inconsistent statement, which the jury can act upon, the former statements”. [87].

The difference here was that it was the defence, and not the prosecution, who sought to rely on one of the statements. [88]. However, his Honour was of the view that “the fact that it is the other way around here ought not to make a jot of difference”. [88]. While appreciating that the task of deciding whether to call a witness is the task alone of the Crown Prosecutor, his Honour took the view that the interests of justice required that Mr Blackman be called as a witness. [91]–[95]. For these reasons, his Honour said that if the facts were to remain as they were, and the Crown did not call Mr Blackman, his Honour would take the “rare course” of calling the witness. [94].

An Associate’s Note to the judgment notes that the prosecution did not, in the result, call Mr Blackman. There being no variation in the evidence as led, compared to the evidenced as foreshadowed, and no further reason for not calling the witness, Henry J took the rare step of calling the witness.

J English