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Here, the trial judge in a criminal matter was asked to take the “unusual step” of calling a witness. A key issue was whether the accused, or another person, had sent messages on the accused’s phone. The prosecution declined to call the other person because of the risk that she may raise the privilege against self-incrimination and because she was an unreliable witness. Williams J concluded that the interests of justice necessitated that the other person be called as a witness. If the defence called her, they would be precluded from cross-examining her, amongst other limitations. Accordingly, it was appropriate that the Court itself call the witness.
20 November 2020
The accused was charged with offences relating to the possession and trafficking of methylamphetamine and cannabis. . The charges arose out of a police stop and search of the accused’s car, at a time when he was accompanied by a Ms Deanne McHarry, who was driving the vehicle. . A search of the accused’s mobile phone revealed messages that supported the charges. However, the accused plead not guilty, and denied having sent the relevant messages. .
An issue arose as to whether Ms McHarry should be called to give evidence. An indication was given to the Court that, if called as a witness, Ms McHarry “would give evidence that she sent the relevant messages on the accused’s telephone”. . However, the prosecutor informed the Court that the Crown would not call Ms McHarry, including because she may claim the privilege against self-incrimination, and because she was not reliable. . Despite Williams J giving a formal intimation to the prosecutor to reconsider her position, the prosecutor again indicated that Ms McHarry would not be called. .
As a result of the prosecution’s refusal to call Ms McHarry, the defence made an application that the Court itself call her as a witness. . The question in this case was whether the Court should take the “unusual step” of doing so. .
Why the Court agreed to call Ms McHarry as a witness
Williams J noted that in R v Apostilides (1984) 154 CLR 563, the High Court had stated that “[s]ave in the most exceptional circumstances, the trial judge should not himself call a person to give evidence”. . However, ultimately her Honour observed that whether or not the Court should call a witness “is a question of what the interests of justice require for a fair trial”. . In relation to that issue, there could be no doubt that “fairness encompasses the presentation of all available, cogent and admissible evidence”. . The prosecution “must also fulfil the responsibility to ensure that the Crown case is presented with fairness to the accused”.
In relation to the prosecution’s suggestion that Ms McHarry might claim the privilege against self-incrimination, Williams J observed that whether she would “would not be known” unless and until she was sworn and asked questions. . In relation to the prosecution’s suggestion that Ms McHarry would not be reliable, her Honour noted that in Apostilides the High Court had said that unreliability will only suffice as a reason to not call a relevant witness if there are circumstances which clearly establish unreliability, and not simply “that the prosecutor merely has a suspicion about the unreliability of the evidence”. .
In all the circumstances, Williams J considered that the interests of justice required that the Court call Ms McHarry as a witness. Calling her would enable evidence which was relevant to the issues (i.e. who sent the relevant messages on the accused’s phone) to be put before the trier of fact, and thereby enable a proper exploration of the hypothesis of innocence. . Requiring the defence to call Ms McHarry would not ensure a fair trial for the accused, because it would require them to go into evidence, with the result that the accused “would lose the right of last address, the opportunity to cross-examine the witness and to rely on aspects of the Evidence Act in relation to prior inconsistent statements”. .
Accordingly, her Honour called Ms McHarry to give evidence at the trial. . Her Honour said that the procedure would be that she would ask no questions other than the witness’s full name, following which both parties would have an opportunity to cross-examine the witness, and the accused could then re-examine the witness if appropriate. , .